Sri N.ganesh Babu

1

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-I

ADDl. DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI N. GANESH BABU, B.Com.,B.L.,

CHAIRMAN, MACT-CUM-

I ADDL. DISTRICT JUDGE.

FRIDAY, THIS THE 1st DAY OF MAY, 2015

M.O.P.NO.1073/2011

Between:

1) Smt. Arugula Ratna Kumari, W/o. Late Prabhu Das @ Ramu, Hindu, Aged 22 Years Residing at SC Colony, Annavaram, Tuni Mandal, E.G. District.

2) Arugula Madhurasiri, D/o. Late Prabhu Das @ Ramu, Hindu, Aged 3 Years Residing at SC Colony, Annavaram, Tuni Mandal, E.G. District

3) Arugula Dhanush Kumar, S/o. Late Prabhu Das @ Ramu, Hindu, Aged 2 Years Residing at SC Colony, Annavaram, Tuni Mandal, E.G. District

4) Arugula Ramanamma, W/o Late Munnayya, Hindu Aged 42 Years, Residing at SC Colony, Annavaram. Tuni Mandal, E.G. District.

(The petitioners 2 and 3 are being minors rep. By their mother as next fried and natural guardian i.e. 1st petitioner.)

...Petitioner

And:

1. Sanapathi Raju Babu, S/o. Adiyya, Hindu, Age not known the petitioners, residing at Mulagalova Village, Panduru Post, Kotauratla Mandal, Anakapalli Visakhapatnam District. (Owner of the Auto Rickshaw bearing No.AP 3 TW 1450)

2. M/s. Bajaj Allianz General Insurance Company Ltd., Rep. By its Area Manager, Area Office, 3rd Floor, Peejay Plaza, C.B.M. Compound, Visakhapatnam (Insurer of the Auto Rickshaw bearing no. AP 31 TW 1450)

...Respondents

This Petition has come up on 21-04-2015 for final hearing before me in the presence of Sri V.Chinna Rao, Advocate for the Petitioner and R1 remained exparte, Sri. Syed Moinuddin, Advocate for 2nd Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1)This petition is filed u/sec. 166 of MV Act claiming compensation of

Rs.4,00,000/- (Rupees four lakhs only) on account of death of deceased Prabhu

Das @ Ramu s/o.Late Munnayya, R/o. S.C. Colony, Annavaram, Tuni Mandal, East

Godavari District in a Motor Vehicle Accident occurred on 30-03-2010 at about 17.00 hours at Field Officer, Near Ramanayyapeta, Nakkapalli Mandal,

Visakhapatnam District.

2

2)The gist of the case of the petitioners is that the 1st petitioner is wife, 2nd petitioner is daughter, 3rd petitioner is son and 4th petitioner is mother of the deceased. The deceased was aged about 25 years and he worked as labourer and he used to earn Rs.6,000/- per month and the deceased sole bread winner of his entire family and all the family members are depending upon the income of the deceased and the deceased was not having movable or immovable properties at anywhere and deceased was hale and healthy prior to the accident.

3)On 30-03-2010 evening the deceased along with his family members boarded an Auto Rickshaw bearing no. AP 31 TW 1450 at Rebaka Village to go to his native place at about 17.00 hours when the said auto reached near Field

Officer Cashew Plantation, near Ramanayyapeta Village, Nakkapalli Mandal,

Visakhapatnam District the driver of the said auto drove the same in a rash and negligent manner with high speed, violated traffic rules, as a result the Auto

Rickshaw was turned turtle and dragged some distance and dashed opposite coming unknown auto and as a result the deceased received severe injuries of the right side of the head and he was shifted to Government Hospital, Nakkapalli in 108 ambulance and after first aid he was shifted to KG Hospital, Visakhapatnam and while under going treatment the deceased was died at 01.00 hours on 31-03- 2010. The Nakkapalli PS, Visakhapatnam District registered a case in

Cr.No.20/2010, under section 304-A, 338 of IPC against the driver of the auto.

4)On account of the death of the deceased the petitioners lost their love and affection of deceased and they are suffering mentally, the 1st petitioner lost consortium and the loss sustained by the petitioner cannot be estimated in terms of money. The 1st respondent is the driver cum owner and the 2nd respondent is insurer of the above auto, as such all the respondents are jointly and severally liable to pay compensation to the petitioners.

5)The R.1 is remained exparte, 2nd Respondent filed counter through their counsel denying the averments and allegations made in the claim petition are 3 false and petition is not maintainable either on facts or in law against this respondent. This respondent does not admit and denies all the allegations made in the petition and the petitioner is put to strict proof of all the allegations except those, which are specifically admitted here under. The person driving the vehicle has “no relation in force” as on the date of accident to drive the vehicle. The petitioner has to prove that the driver of the Auto bearing No.AP 31 TW 1450 was holding valid driving licence with required endorsement to drive the class of vehicle he was driving at the time of the endorsement to drive the class of vehicle he was driving at the time of the alleged accident, the petitioner is not entitle to receive compensation from this respondent insurance company since the driver of the vehicle bearing No. AP 31 TW 1450 was not holding any valid and effective driving licence by the date of the alleged accident and further was not qualified for holding or obtaining such driving licence and further has not satisfied the requirements of the Rule No.3 of the Central Motor Vehicles Rules, 1989. One can drive the vehicle auto if he should have driving Licence of LMV / AR with

Transport endorsement, but the 1st respondent/driver did not possess valid and effective driving licence as on the date of accident to drive the vehicle. The respondent no.1 willfully and knowingly has plied the vehicle without having a valid and effective driving licence as on the date of alleged accident and therefore, has contravened the proviso of the MV Act and the Rules framed there under. Hence, in view of the above stated breach made by the Respondent No.1, he is alone liable to pay the compensation to the claim petitioners and this respondent company has no liability to pay any compensation to the claim petitioners and it is liable to pay any compensation to the claim petitioners. As per Section 134(c) of MV Act 1988, it mandatory duty of the respondent no.1 herein to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of the driving licence but the 1st respondent herein has not complied with statutory demand. As per Section 158(6) of MV Act, 1988, it is a mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer 4 within 30 days from the date of the information but the Nakkapalli police station failed to forward the documents and not complied with the statutory demand.

The petitioners are put to strict proof that the registered owner used the vehicle bearing No.AP 31 TW 1450 without any breach of permit and traffic rules as per

MV Rules. The petitioners are put to strict proof that there was no violation of any section of MV Act 1988 and its subsequent amendments. The petitioner's claimed interest @ 18% which is highly excessive and same is contrary to Sec.3 of Interest Act, 1978 and the observations of the various judgment of the Hon'ble

Apex Court. The petitioners are not entitled to claim any interest on non- pecuniary damages as per the observations of the judgment of Hon'ble Apex

Court. This respondent does not admit and denies the allegation that the vehicle bearing no.AP 31 TW 1450 was involved in the above alleged acident and it was driven in a rash and negligent manner and the petitioner is put to strict proof of the same. This respondent is not aware and denies for want of knowledge that the deceased was aged about 25 years and used to earn a sum of Rs.6,000/- per month as a self emplyee for want of. This respondent does not admit and denies the allegations regarding the manner in which the alleged accident said to have occurred. This respondent does not admit and denies for want of knowledge that the Nakkapalli Police Station registered a case in Cr.No.20/2010 u/sec. 337 and 338 of IPC against the driver of the vehicle bearing no.AP 31 TW 1450. The petitioner has to prove that the driver of the offending vehicle was holding valid and subsisting licence with required endorsement to drive the class of the vehicle he was driving as otherwise the 2nd respondent is not liable at all. As per the information available with the R.2, the owner cum driver of the auto was holding

LMV-Non-Transport licence, where as he was driving auto which is “a Transport

Vehicle for which his licence should have transport endorsement with A/R” endorsement but the same was not there and the 2nd respondent obtained xerox copy of the driving licence of the R.1 – DL FAP 3319242008 and was sent to the

RTA Anakapalli and they gave the extract with driving licence for MCWG & LMV

Non-Transport on 5-3-08 and the same was valid up to 14-03-22 but the said 5 licence did not had “Transport endorsement with A/R” which is mandatory and thus the R.1 violated the statute and the R.1 is both statutorily as well as contractually bound to verify the licence of his driver before entrusting the vehicle to him but he himself drove the said auto without the required endorsement, thus violated Sec.5 of MV Act, hence the 1st respondent alone liable to pay compensation to the petitioners and the claim as against this respondent is to be dismissed.

6)The 2nd respondent also filed additional counter stating that the involvement of the insured vehicle in the alleged accident is suspicious and not all genuine one viz., the very recitals of the FIR and the complaint annexed to it categorically reveals that the alleged accident occurred due to rash and negligent driving of the driver of the vehicle bearing no. AP 31 TW 1451 alone but not due to the rash and negligent driving of the driver of the insured vehicle auto bearing no. AP 31 TW 1450. Moreover, the vehicle bearing No.AP 31 Tw 1451 was not having any sort of valid RC, Permit, FC, Insurance and the driver of the said vehicle drove the same without having any sort of driving licence by the alleged accident. The petitioner, 1st respondent, the driver and owner of the vehicle bearing No. AP 31 TW 1451 collude with each other and foisted the present case with a view to get wrongful gain. Hence this petition is liable to be dismissed.

7)Upon the aforesaid pleadings on the parties the following issues were settled for trial:

1.Whether the deceased Prabhu Das @ Ramu, died due to rash and negligent driving of the driver of the Auto AP 31 TW 1450 ?

2.Whether the petitioners are entitled to compensation amount, if so, to what amount and from which of the respondent?

3.To what relief?

8)During the course of trial the 1st petitioner examined herself as PW-1, one

Dora Babu to speak as an eye witness to the accident as PW-2, the Evidence of 6 another eye witness Gorinta Nageswara Rao is eschewed on 01-07-2014 and

Kaparapu Baby is examined as PW-3 and got Ex.A.1 to A.7 were marked. Where as the Respondent No.2 examined its Executive-Legal Sri S. Vasudeva Rao as RW- 1 and the summoned witness MV Inspector Sri M. Murali Krishna examined as

RW-2 and got marked Ex.B.1 to Ex.B.5 B.2 and Ex.X.1.

9)Heard the learned learned counsel for the petitioner. The learned counsel for the R.2 filed written arguments on behalf of R.2.

10)Issue No.1. Whether the deceased Prabhu Das @ Ramu, died due to rash and negligent driving of the driver of the Auto AP 31 TW 1450 ? ?

Since it is a fatal accident case of death of Prabhudas @ Ramu in the Motor

Vehicle Accident occurred on 30-03-2010, the initial burden is on the claim petitioners to prove that the deceased Prabhudas died on account of injuries received in the accident and that the crime vehicle was used on the road at the relevant time. PW-1 Arugula Ratna Kumari has once again reiterated in her examination in chief that her husband Prabhudas died due to the injuries received in the accident. It is the specific case of PW-1 that their relatives including deceased boarded an Auto Rickshaw bearing No. AP 31 TW 1450 at Rebaka

Village to go to their native place and when their auto reached near Field Officer

Cashew Plantation, near Ramanayyapeta Village of Nakkapalli Mandal,

Visakhapatnam District the driver drove the same in a rash and negligent manner with a high speed and violated traffic rules, as a result auto rickshaw was turned turtle and her husband received sever injuries and died while under going treatment in the KG Hospital, Visakhapatnam. This PW-1 is subjected to little cross examination wherein she denied the suggestion that on account of travelling of excess passengers in the auto-rickshaw to the seating capacity the driver lost the control over the crime vehicle and that is the cause for occurrence. It means insurance company does not want to dispute the above version of PW-1 that her husband received injuries in the accident in issue and ultimately died while under going treatment. In order to get support to this evidence of PW-1 the claim 7 petitioner examined the eye witness to the above accident. PW-2 Dora Babu who is the author of the police complaint in respect of the accident.

11)Pw2 has asserted in his evidence that he is a witness to the above accident., since he was also travelling along with the deceased prior to the occurrence of the accident and further their auto turned turtle due to rash and negligent driving of the auto-rickshaw by its driver. PW-2 Dorababu reiterated in his cross examination that himself, deceased, two more persons were travelling in the crime vehicle apart from the driver and he was sat in the auto on the left side in the back seat. His brother-in-law was sat by the side of the driver seat. PW-2 denies that the accident occurred only due to the travelling of his brother-in-law by the side of the driver as driver could not control the auto-rickshaw and further he denies that about 8 persons including himself and deceased were travelling in the crime vehicle. Coming to the evidence of PW-3 Kaparapu Baby, she too deposed that she was travelling in the above crime vehicle as a co-passenger of the deceased and that due to turned turtle of their auto the deceased received injuries and ultimately he was shifted to Government Hospital in KG Hospital,

Visakhapatnam for better treatment and on 31-03-2010 at about 01.00 hours the deceased was died while under going treatment. It is also elicited from the PW-3 that herself, her husband, deceased Prabhudas and her brother Nageswara Rao and the minor son were travelling in the auto at the time of accident. However, she denied the suggest on that the deceased was travelling in the auto by sitting on the rod and that due to his negligent fell down from auto rod and died. The above oral evidence of PW-1 to PW-3 is overall consist and undoubtedly inspired trustworthiness before the court that the deceased had received injuries in the above accident and died while under going treatment in the KG Hospital. As a matter of fact this oral evidence is also corroborated by the unassailed recitals of

Ex.A.1 FIR.

12)The insurance company through their additional counter tried to project the crime vehicle is one auto bearing No. AP 31 TW 1451 as the driver of the said 8 auto was not having any sort of valid RC, permit, FC, Insurance this insured vehicle. Perused the Ex.A.1 complaint wherein the registration number of the auto only the deceased was travelling along with complainant as AP 31 TW 1450 and the same registration number is also reflecting in FIR as well as in the Ex.A.4 charge sheet. Even other wise the insurance company failed to establish the above defence through their witness RW-1 except orally staring the same and no documentary evidence is forthcoming to show that actually the auto-rickshaw involved in the accident as one bearing registration number AP 31 TW 1451.

Ex.A.4 charge sheet is clearly ready that the deceased died on account of the multiple injuries received in a road accident due to negligence of the driver of the crime vehicle. Hence this point is answerer affirmatively in favour of the petitioners.

13) Issue No.2 : Whether the petitioners are entitled to compensation amount, if so, to what amount and from which of the respondent?

In the present case RW-1 S.Vasudeva Rao who is Executive-Legal of the insurance company categorically admitted that the crime vehicle was covered with insurance issued by their company under Ex.B.1 and that the policy under

Ex.B.1 was in force by the date of occurrence of the accident. While dealing with the Issue No.1 the finding of this court is that the driver of the 1st respondent is squirrelly held responsible for the death of the deceased due to his rash and negligent driving of the crime vehicle which was insured with the 2nd respondent.

If that being so the insurance company is bound to indemnify the R.1 in payment of compensation to the petitioners for the death of the deceased, unless defence of the insurance company that the driver of the crime vehicle was not having valid driving licence at the time of the accident holds water, on this asper of the matter burden lies on insurance company to . The RW-1 in his examination in chief reiterated the above deference and sthrough him the policy copy is marked as Ex.B.1 extract of Driving Licence issued by Addl. Licencing Authority of

Narsipatnam as Ex.B.2 Registration Certificate of A.P. 31 TW 1450 since Ex.B.3 9 and further this respondent addressed a letter to 1st respondent to produce the driving licence, RC, FC, etc., in this regard Ex.B.4 and Ex.B.5 are marked. In the cross examination, RW-1 admits that the policy under Ex.B.1 is in force by the date of occurrence of the accident. Further R.1 has got LMV driving licence at the time of the accident, but according to them it is invalid one. Lastly he denied the suggest that R.1 drove the crime vehicle with a valid driving licence under

Ex.B.2 on the date of accident. The insurance company has also examined the

MVI of Narsipatnam Sri. M.Murali Krishna and he stated that the Ex.B.2 driving licence possessed by the R.1 is non-transport driving licence and that a person holding the driving licence like in the case of S.Raju Babu cannot drive an auto- rickshaw,as one should have the DL transport with endorsement AR with badge.

The abstract of the DL of S.Raju Babu is marked as Ex.X.1 and that Ex.A.3 MVI report is prepared by him and that allowing a passenger in auto-rickshaw besides the driver is prohibited and it amounts violation of the MV Act. In turn the violation of the terms and conditions of the Ex.B.1 policy. In the cross examination of RW-2 stated that one should have at least one year experience in driving the vehicle to get badge in order to drive the auto. The driving licence was issued for the 1st time took the driver of the crime vehicle on 05-03-2008.

14)The sum and substance of aforesaid discussion is that the 1st respondent has allowed one of the passengers in his auto to travel by sitting by the side of him i.e. driver's seat which is apparently prohibited under the MV Act. But at the same time no iota of evidence to show that travelling by the side of the driver as the route cause for the occurrence of the accident. More over the deceased is admittedly 3rd party to Ex.B.1. Even assuming for the arguments sake that the respondent has violated terms and conditions of policy by allowing passengers travel by the side of him that should not be the basis for the insurance company to exonerate its liability when the deceased is a 3rd party to policy under Ex.B.1.

15)The contention of the learned counsel for the 2nd respondent that admittedly 10 the vehicle involved in the accident is a passenger carrying commercial vehicle and as per Section 2(35) of MV Act it is clearly defining that, Any passenger carrying vehicle can be considered as a public service vehicle. As per the

Sec.2(47) of the Act, it is clearly defined that, Any public service vehicle can be considered as transport vehicle and as such the vehicle involved in the accident would come under the category of transport vehicle as per Section 10 of the Act and the driver must possess a transport licence to drive auto-rickshaw and also must have the badge. In the instant case as respondent no.1 does not possess transport DL endorsement and badge, the insurance company is not liable to pay compensation.

16 ) The learned counsel for the respondent no.2 has contended that the 1st respondent who was not having effective and valid licence on the date of accident and thus willfully violated terms and conditions of the policy, as such the liability of the insurance company to indemnify the 2nd respondent as owner of the crime vehicle is exonerated in support of the said contention he has placed reliance on the following judgments in support of the said contention.

2008 ACJ 1336 (SC) National Insurance Co. (Vs.) Kusum Rai

It is observed that driver of the accident vehicle is holding a licence to drive light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently therefore there was breach of contract of insurance by the insured.

2008 ACJ @ Page 1307 (SC) Sardari and Others (Vs.) Sushil Kumar and

Others

The Apex Court by referring the various judgments viz.,

Iswara Chandra and others (Vs.) The Oriental Insurance Co.,

National Insurance Co., (Vs.) Kusumarai,

National Insurance Co. (Vs.) Swaran Singh,

New India Assurance (Vs.)Prabulal and

Oriental Insurance (Vs.) Prithvi Raj and others held that :-

The Insurance Company has no liability if the breach of conditions of contract is ex-facie apparent from records. It is the duty of the owner bound statutorily to ensure that vehicle 11 is handed over to only those persons who has valid and effective driving licence.

2004 ACJ @ Page 1 (SC) National Insurance Co. Ltd., (Vs.) Swaran Singh

Where the driver held no licence, the insurance co. can succeed in getting exoneration and the company in the present case has proved its case that the driver of the offending vehicle did not possess valid and effective licence.

At para 82 their lordships clearly observed that we have analysed the relevant provisions of the said Act in terms where of a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of

Sec.5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Sec.3 or 4 of the Act. In a case therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven the owner of the vehicle by such a person, the insurer is entitled to succeed in its defense and avoid liability. HERE THE OWNER CUM

DRIVER DROVE THE SAID VEHICLE WITHOUT VALID LICENCE.

Another Judgment delivered by the Madras High Court in The Oriental

Insurance Co. (Vs.) Sivammal & Others

In this judgment their lordships gave a clarification with regard to the weight age of the vehicle in Para No.30 of the judgment as there can be no dispute over the fact that various types of licences are issued for driving different types of vehicles. It cannot be disputed that a person should be possesses of an effective driving licence defined under Sec.3 of MV Act 1988, an effective driving licence would mean a valid licence, both as regards the period as well as the type of the vehicle.

If the validity of the licence is to be determined only pm the basis of weight of the vehicle, then all would be required for a person is to obtain a licence for a heavy motor vehicle, and such a person need not obtain separate licence either for light motor vehicle, auto rickshaw or two wheeler. It is appreciated that each of the said types of vehicles operates on different mechanism driving skill, capacity to balance the vehicles. A 12 driver of four wheeler cannot be presumed to know how to drive a two wheeler which is essentially required the capacity to balance the vehicle.

Likewise the mechanism of the goods auto rickshaw is also different considering that the process of acceleration, operating clutch and gear and applying brakes etc., are totally different. Therefore, the mere weight of the vehicle alone cannot be deciding factor.

Another Judgment reported in 1989 AIR (SC) Kasiram Yadav (Vs.) Oriental

Fire and General Insurance Co.

It was held in Para 4 that Sec.96 of the MV Act 1939 imposes duty on the insurer to satisfy judgment against persons insured in respect of third party risks. Sub Section 2 (b) 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there is a breach on specified conditions of policy. One of the conditions specified in clause

(ii) is that the vehicle should not be driven by any person who is not duly licenses or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualifications it is not in dispute that the certificate of insurance concerned in this case contains this condition. If therefore there is a breach of condition the insurer will not be liable to indemnify the owner.

Another Judgment by Justice Noushad Ali in M.A.C.M.A.No. 5482 of 2008 decided on 24-06-10(AP) it was held in para 16 to 18

Mere holding a light motor vehicle is not sufficient to drive a transport vehicle. Licence to be effective as required under

Sec.3 of MV Act should have an authorization entitling the holder to drive the particular class of vehicle. Hence, the

Insurance co. is not liable to pay any compensation. It was also held that it is not a fit case to direct the Insurance Co. to pay and recover amount from the owner. It was also held that the claimant may proceed to recover the amount from the owner.

17The learned counsel for the claim petitioner has contended that Ex.X.1 DL abstract possessed by the driver of the crime vehicle is a valid driving licence and 13 driving of the crime vehicle with Ex.X.1 without endorsement of transport and badge that to petitioner being a 3rd party Ex.B.1 policy is perfectly tenable in law and the insurance company cannot escape its liability to pay compensation to the petitioner in support of the proposition reliance is placed on the judgment

Hon'ble Supreme Court of India between Kulwant Singh and others (vs.)

Oriental Insurance Co. Ltd. Reported in 2014 ACJ 2873 where in it was held that:

“Insurance Company disputes its liability on the ground that driver had licence to drive light motor vehicle but he was driving a goods vehicle – Tribunal mulcted liability on the insurance company on the ground that offending vehicle was 'light goods vehicle' and driver had a valid driving licence –

High Court observed that 'light motor vehicle' cannot be equated with 'light goods vehicle there was breach of policy as driver did not have valid and effective driving licence and granted recovery rights to insurance company – Whether a person holding driving licence to drive 'light motor vehicle' was authorised to drive 'light goods vehicle' and there was no breach of insurance policy – Held: yes; order of High Court set aside the Tribunal's order restored”

Upon considering the latest judgment of the Hon'ble Supreme Court of India there is no force in the contention of the learned counsel for the respondent that

Ex.X.1 Driving Licence is not a valid driving licence and on that the insurance company is exonerated from its liability to indemnify by the 2nd respondent in respect of the said accident.

18) This court is of view that no tenable defence have been raised by the insurance company to avoid its liability to pay compensation to the petitioner where the heirs of the deceased.

19)So far determination of the quantum of the compensation is concerned the court has to decide the first age, occupation and income of the deceased which the major components in the compensation amount towards loss contribution of 14 the income to the petitioners by the deceased on account of his death in the above accident.

20)The petitioners are shown the age of deceased 25 years and his occupation as labour cum self employment and monthly income of Rs.6,000/-. The PW-1 has admitted in her cross examination that Government has issued ration card in her name but she cannot say its colour either pink or white. Further she cannot say age gap between her and her husband. Lastly she denied the suggestion t hat the monthly earnings of her husband Rs.6,000/- by doing coolie work. In this case admittedly the age and income proof of the deceased are not filed by the petitioners. Even then seeing the positive photo of the petitioners and two minor children the age of the deceased is notionally taken as 25 as above years . In absence of the income proof of the deceased and the earning getting Rs.6,000/- per month, the court is inclined to notionally assess the monthly income of the deceased at Rs.5,000/- per month by the following judgment of the Hon'ble

Supreme Court of India in New India Assurance Co. Ltd. (vs.) Smt.

Kalpana & Other reported in 2007 Air SCW 1316. Then the yearly income of the deceased comes to Rs.60,000/- and after deduction 1/3rd towards personal expenses of the deceased had he been alive it come to Rs.45,000/- and by applying multiplier '17' it comes to Rs.7,65,000/-. The claim of Rs.5,000/- towards transport to hospital is considered to be just and reasonable even in the absence of transport bills on account of involvement of shifting of dead body of the deceased to the hospital from there to the place of cremation. A sum of

Rs.10,000/- is granted towards funeral expenses. The petitioners are not entitled to compensation of pain and suffering since the deceased died while under going treatment. A sum of Rs.15,000/- is granted towards love and affection and a sum of Rs.15,000/- is granted towards loss of estate.

21)The learned counsel for the claim petitioners is contended that even if the amount to be arrived as just and compensation is more. Then claimed amount it can be granted by the tribunal and in support of this proposition reliance is placed 15 on the judgment of the Hon'ble Supreme Court in matter between Rajesh and Others (Vs.) Rajbir Singh and Others reported in 2013 ACJ 1403 and also placed another judgment of the Hon'ble Supreme Court of India in

matter between Sanobanu Nazirbhai Mirza and others (Vs.) Ahmedabad

Municipal Transport Service reported in 2013 ACJ 2733 wherein it was held that :

“Whether compensation more than claimed can be awarded – Held : Yes; it is the statutory duty of the

Tribunal/appellate Court to award just and reasonable compensation to the claimant to mitigate his hardship and agony”.

And also on the same principle judgment of the Hon'ble High Court of

A.P. in P.Yeshodamma and others (Vs.) T.Buchi Reddy and another in

2006 ACJ 414

22)Thus, altogether, the petitioners are entitled for total compensation amount of Rs.8,10,000/-(Rupees eight lakhs ten thousand only) from the respondent no.1 and 2 jointly and severally. Accordingly, this issue is answered.

23)ISSUE NO.3: To what relief?

In view of the aforesaid discussion on issue Nos.1 and 2, this court under the present issue an amount of Rs.8,10,000/-(Rupees eight lakhs ten thousand only) awarded to the petitioners towards compensation for the death of deceased Prabhudas in the above accident. Accordingly, this issue is answered in favour of the petitioners.

24)In the result, the petition is allowed with costs, directing the respondents 1 and 2 jointly and severally to pay compensation amount of Rs.8,10,000/- (Rupees eight lakhs ten thousand only) together with accrued interest at the rate of 7.5% per annum from the date of the petition, till the date of realization.

Two months time is granted for deposit of compensation amount into court. On deposit of the compensation amount into court, the same is apportioned as follows:

16 1st Petitioner Rs.3,60,000/- (Rupees three lakhs fifty thousand only) 2nd Petitioner Rs.1,75,000/- (Rupees one lakh seventy five thousand only) 3rd Petitioner Rs.1,75,000/- (Rupees one lakh seventy five thousand only) 4th Petitioner Rs.1,00,000/- (Rupees one lakh only)

The 1st petitioner is permitted to withdraw an amount of Rs.1,00,000/- (Rupees one lakh only) out of the compensation amount awarded to her and remaining amount shall be invested in fixed deposit in any Nationalised Bank for a period of three years, the 4th petitioner permitted to with draw an amount of Rs.50,000/- (Rupees fifty thousand only) out of the compensation amount awarded to her and remaining amount shall be invested in fixed deposit in any Nationalised Bank for a period of three years. The compensation amounts of the petitioners 2 and 3 shall be invested in fixed deposits in any Nationalised Bank till the age of their attaining majority and thereafter they are entitled to withdraw their respective amounts with accrued interest thereon. Office is directed to prepare decree after payment of court fee for the additional compensation awarded by this court to the petitioners. Advocate's fee is fixed at Rs.3,000/- (Rupees three thousand only).

Dictated to the Grade-III Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 1st day of May, 2015.

I ADDL.DISTRICT JUDGE-CUM-MOTOR

ACCIDENTS CLAIMS TRIBUNAL:

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER:FOR RESPONDENTS:

P.W.1 – Arugula Ratna KumariR.W.1 – S.Vasudeva Rao P.W.2 – Dora BabuR.W.2 – N. Murali Krishna P.W.3 – Kapurapu Baby

EXHIBITS MARKED

FOR PETITIONER:

Ex.A.1: Attested copy of FIR in Cr.No.20/2010 of Nakkapalli P.S. Ex.A.2: P.M.E. Certificate Ex.A.3: M.V.I. Report Ex.A.4: Charge sheet Ex.A.5: 'C' Book Ex.A.6: Driving Licence of Crime Vehicle 17

Ex.A.7: Legal Aid Certificate issued by Tahasildar Tuni.

FOR RESPONDENTS:

Ex.B.1 : Policy copy along with terms and conditions Ex.B.2 : Extract of DL issued by Addl. Licensing Authority at Narsipatnam Ex.B.3 : Extract of Registration Certificate of AP 31 TW 1450 Ex.B.4 : Letter addressed to the First Respondent by Insurance Company Ex.B.5 : Postal acknowledgement of Ex.B.4 by respondent.

'X' Series documents

Ex.X.1: Extract of DL of S. Raju Babu

I A.D.J./VSP

1

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-I

ADDl. DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI N. GANESH BABU, B.Com.,B.L.,

CHAIRMAN, MACT-CUM-

I ADDL. DISTRICT JUDGE.

FRIDAY, THIS THE 1st DAY OF MAY, 2015

M.O.P.NO.782/2011

Between:

Sri Malisetla Ganesh, s/o. Malisetla Ramu, Hindu, Aged 25 Years, Residing at Maatchavanipalem village, Dondapudi Post, Ravikamatam Mandalam, Visakhapatnam District.

...Petitioner

And:

1. Sri Kona Ganesh, S/o. Kalyanam, Hindu, Aged 23 Years, Residing at Mediwada Village, Ravikamatam Mandalam, Visakhapatnam District.

2. United India Insurance Co., Ltd., Represented by its Senior Divisional Manager, Anakapalle, Visakhapatnam District.

...Respondents

This Petition has come up on 20-04-2015 for final hearing before me in the presence of Sri J.A. Naidu, Advocate for the Petitioner and R1 remained exparte, Smt. S. Chandra Kala, Advocate for 2nd Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1)This claim petition is filed for a sum of Rs.2,00,000/- (Rupees two lakhs only) towards damages for the injuries received by the petitioner in the Motor

Vehicle Accident occurred on 14-10-2010 at G.Cheedipalli (V) Ravikamatam (M)Visakhapatnam Dist.

2)The petition averments in brief are that on 14-10-2010 the petitioner went to Ravikamatam on a bus to grind coconut oil and after completing his work he boarded the auto bearing Regn. No.AP 31 TW 1492 to return to his house from

Ravikamatam and when they reached near G.Cheedipalli Jn., about 2.00 PM the driver of the auto drive the same with high speed and also with a rash and negligent manner without blowing horn and tried to overtake one girl who is proceeding on the road as a result the auto turned turtle. As a result the petitioner received grievous injuries including dislocation of right shoulder and left 2 ear was totally removed and he also received the injuries over the forehead, left hand, left hand knee, left leg knee and all over the body and immediately the petitioner shifted to the Govt. General Hospital, Narsipatnam on 108 ambulance and provided first aid and then he shifted to KGH,Visakhapatnam and also referred to ENT Hospital, Visakhapatnam and operation was conducted and also applied POP and MRI Scan and also treated as inpatient about one month and underwent treatment as an outpatient till now.

3)The petitioner suffered loss due to the injuries in the said accident and spend much more amount for medicines, transport, extra nourishment food etc., and also spend some amount for his assistance/attendants in the hospital and also for their food and shelter at Visakhapatnam. The petitioner is aged 25 years and he is very active and efficient person and used to do the rod bending and building contract works and earning Rs.500/- per day and assist to the maintenance of his family now on account of the accident the petitioner has lost his earning power and he is a permanently disabled for his job. The loss of the petitioner will not be calculated in terms of money and if the driver of the auto has taken minimum care the accident may not be occurred. The accident was occurred only due to rash and negligent driving of the driver of the auto. The

SHO, Kothakota Police has registered the crime against the driver of the above auto u/s.338 IPC in Cr.No.51/2010 and filed charge sheet after due investigation.

The 1st respondent is owner-cum-driver of the crime auto and 2nd respondent is insurer of the said auto and hence both the respondents are jointly and severally liable to pay the compensation to the petitioner.

4)The R.1 is remained exparte, Permission accorded to respondent no.2 under section 170 of MV Act vide order in IA no.828/2014 dt.08-12-2014. The R.2 ultimately contesting this claim petition by filing a detailed counter in which all the material allegations made in the petition are denied, false and petition is not maintainable either of facts or in law. This respondent does not admit that petitioner is aged 25 years, and working as a rod bender and earning Rs.15,000/- 3 pm and petitioner is put to strict proof of the same. This respondent also does not admit the narration made in the petition relating to the manner in which the accident is described to have taken place. The respondent also not at all aware of the alleged treatment taken by the petitioner in the hospitals as mentioned by him and also spent an amount of Rs.50,000/- towards medicines, Rs.20,000/- towards transport, Rs.20,000/- towards loss of earnings the amount spent for medical treatment. In fact the accident occurred due to negligence of the petitioner but not due to the negligent driving of the driver of crime vehicle. In fact the petitioner sat on the side of the driver is the violation of MV Act and also policy conditions. It amounts to contributory negligence on the part of the petitioner. The quantum of the compensation amount is all false, baseless, out of proportion, hypothetical. The petitioner is also put to strict proof of that the accident vehicle having all the valid vehicular documents as 'C' book and other relevant documents such as fitness, permit etc., at the time of accident, but for which this respondent is not liable to pay any compensation and in the above mater, the company got investigated and in the investigation it was revealed that the driver K.Ganesh is the owner of the vehicle. He is the owner-cum driver. The vehicle involved in the accident is an auto which is a transport vehicle. To drive an auto one should possess transport licence with auto rickshaw endorsement.

But as per D.L. Possessed by R.1 the driver is only authorised to drive LMV non- transport vehicle. He is not having transport driving licence with an endorsement to drive a passenger auto. As the owner he is signatory to the contract of insurance. He is well aware of terms and conditions of policy and then he is knowing that he himself not allowing to drive the offending vehicle and caused accident without holding valid and effective licence and thereby willfully violated the terms and conditions of the policy and for this act he is not entitled for any indemnification from the said R.2. According to policy conditions ”the driver while on duty should posses valid and effective licence to drive the vehicle , but in the above matter he did not possess the same, thus R.1 violated the terms and conditions of policy by allowing himself to drive the said vehicle without proper 4 licence. As per Sec.3 of MV Act 'No person shall be drive a vehicle in any public place unless he holds a valid and effective licence. But in the above mater the accused driver-cum-owner drove the vehicle without proper licence, hence the

R.2 is not liable to pay any compensation as the driver-cum-owner committed the fundamental breach of contract of insurance as well as the provisions of MV Act.

The petitioner has to prove that the driver of the offending vehicle should posses valid and subsisting driving licence to drive the vehicle as on the date of accident but for which this respondent is not liable for any indemnification. As per Sec.134

(c) of MV Act it is the mandatory duty of the insured/1st respondent herein to furnish the particulars of policy, date, time and place of accident, particulars of the injured and the name of the driver and particulars of the driving licence but the insured/2nd respondent herein has not complied with statutory demand.

Hence, R-2 is not liable to pay any compensation to the petitioner, if any entitle by the applicant, the R.1 alone liable. The petitioner has not furnished any particulars with regard to the insurance of the vehicle and as such this respondent puts the petitioner to strict proof that the accident vehicle was duly insured with this respondent at the time of the accident. Even if the policy was issued, unless and until the said policy was complied under Sec.64 VB of Insurance Act, this respondent is not liable to pay any compensation. It is also to be proved by the petitioner that the accident was occurred due to the negligence of the driver of the Innova Car as otherwise this respondent is not liable. The liability, if any, of this respondent has been defined and delimited both under the terms and conditions of contract of insurance if any,m and also under provisions of MV Act.

Therefore, this respondent's liability cannot exceed such limit under any circumstances. If any compensation payable to the petitioner, the interest should not exceed 6% towards compensation as per RBI guide lines. This respondent company seeks protection under Sec.147, 149(2) of MV Act. As per Sc.158(6) of

MV Act it is a mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer within 30 days from the date of information but the concerned police station failed to forward the documents and 5 not complied with the statutory demand. Hence this petition is liable to be dismissed.

5)Upon the aforesaid pleadings on the parties the following issues were settled for trial:

1.Whether the petitioner sustained injuries in the accident that occurred, due to rash and negligent driving of the auto rickshaw bearing Regn. No. AP 31 TW 1492 by its driver ?

2.Whether the petitioner is entitled to compensation, if so to what amount and from whom?

3.To what relief?

6)During the course of the trial claim petitioner in order to establish his claim examined himself as PW-1 and Dr.B.D.Naidu as PW-2 to prove the disability sustained by him on account of injuries received in the above accident and got marked Exs.A.1 to A.9 where as the Respondent No.2 examined its Asst. Manager

Sri R.Lakshmana Rao as RW-1 and the summoned witness MV Inspector,

Narsipatnam Sri M. Murali Krishna examined as RW-2 and got marked Exs.B.1,

B.2 and Ex.X.1.

7)Heard learned learned counsel for the petitioner and the learned counsel for the R.2 filed written arguments on behalf of R.2.

8)Issue No.1. Whether th petitioner sustained injuries in the accident

that occurred, due to rash and negligent driving of the auto rickshaw

bearing Regn. No. AP 31 TW 1492 by its driver ?

In the instant case the claim petitioner alone examined himself as PW-1 but no any independent witness who actually witnessed the occurrence whose names are cited in the charge sheet which is marked as Ex.A.4. Even then the evidence of PW-1 can be accepted if it is trustworthy that to his position as an injured eye witness, evidentiary value shall be attached to him in that capacity as per the settled proposition of law .

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9)The evidence of PW-1 M.Ganesh so far it relates to his examination in chief is almost all the same as averred in the petition as extracted supra. In the cross examination on behalf of insurance company PW-1 has denied the suggestion that he was travelling in the back side but not in the driver seat as suggested to him.

Immediately the PW-1 has stated that he do not know whether his complaint

Ex.A.1 reads that he was sat by the side of the driver in the auto. Similarly the insurance company got admission from PW-1 that he has taken the entire medical treatment in the Govt. Hospital for which he adds that he purchased some medicines privately. The trend of the cross examination of this PW-1 would show the ultimate defence of the insurance company in resisting the claim petition is on the allegation of contributory negligence of the petitioner for the occurrence of the accident and further the very fact that the petitioner herein has received injuries on account of above accident and that the PW-1 has taken the major treatment in the Govt. Hospital, Visakhapatnam. The petitioner has come up with a wound certificate issued by primary health center, Ravikamatam to the effect that the petitioner received altogether 5 injuries out of that the injury to the shoulder is the grievous in nature. It is also the case of the petitioner that the above grievous injury made him permanently disabled and in order to prove the said fact the claim petitioner has also examined Dr.B.D.Naidu.

10)According to PW-2 he is running own nursing home by name Sri Lakshi

Nursing Home, Visakhapatnam after attaining superannuation as Professor of

Orthopedic KGH, Visakhapatnam 10 years back. He examined M.Ganesh on 10- 10-2012 in his hospital and observed multiple abrasions on right shoulder and multiple nerve injuries on right hand and he got multiple cut injuries on let ear and he cannot hear and he assessed 50% partial and permanent disability to that effect he issued disability certificate under Ex.A.9. In a cross examination PW-2 has admitted that he has not treated nor operated PW-1 in the KG Hospital. He has treated PW-1 in his nursing home after he was discharged from KGH but he has treated him as a outpatient. His assessment relating to disability of 50% 7 covers both the shoulder injury and ear injury. Lastly PW-2 has denied the suggestion that he being a orthopaedic doctor cannot speak about the injury to ear and damage of hearing capacity. He has shown the 50% disability according to the rules lay down by All India Limb Manufacturing Corporation of India,

Kanpur but this fact he has not mentioned in Ex.A.9. The petitioner has filed bunch of prescriptions and reports which is marked as Ex.A.6. As per this Ex.A.6 the PW-1 was treated in Govt. ENT Hospital,Visakhapatnam and in the OP card bearing Regn. No.37340. It is mentioned on the diagnosis right ear injury and right ear pinna repair was done. As per the audiological evaluation report bilateral hearing sensitivity within normal limits. Though the petitioner has taken hand over summons to the Doctor who treated him in the Govt. ENT Hospital but he was not examined. As rightly contended by the learned counsel for the respondent PW-2 is not competent to being a Orthopaedic surgeon to assess the disability if any to the injury received to the ear by PW-1 in the above accident.

Under these circumstances the percentage of disability suffering by PW-1 on account of fracture alone is taken and its percentage is 10%. Hence this issue is answered affirmatively in favour of the petitioner.

11) Issue No.2 : Whether the petitioner is entitled to compensation, if so

to what amount and from whom?

While dealing with Issue No.1 the finding of this court is that the driver of the crime vehicle which is owned by the 1st respondent herein is squarely responsible for turned turtle of the crime vehicle which resulted the petitioner who was travelling in the said vehicle received grievous/fracture injury. And that the driver of the 1st respondent alone accountable for the above accident due to his rash and negligent driving. It is not in dispute that the crime vehicle was insured with respondent no.2 and said insurance coverage under Ex.B.1 policy was in force on the date of above accident. If so, in the normal circumstances the petitioner is entitled to receive the compensation, unless the respondent no.2 could able to prove that the driver of the crime vehicle was not having valid driving licence at the time of the accident holds water.

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12)In order to prove its case of non possessing valid DL by the driver of crime vehicle at the time of accident the R.2 insurance company examined its employee

Sri R.Lakshmana Rao as RW-1 and a summoned witness MVI Sri M. Murali

Krishna as RW-2. The evidence of RW-1 is nothing but replica of the defence taken by respondent No.2 as extracted supra. In the cross examination RW-1 admits that the policy under Ex.B.1 was in force on the date of accident and that on the non transport driving licence one can drive the LMV vehicle, crime vehicle is an auto. Lastly RW-1 denied the suggestion that there is no violation of terms and conditions of the the Ex.B.1 policy committed by the R.1 with the existing driving licence under Ex.B.2 by its driver at the time of the accident as it is valid driving licence and that to avoid payment of compensation to the petitioner he is giving such false defence.

13)The contention of the learned counsel for the 2nd respondent is that the crime vehicle is a three wheeled goods auto and it meant for transport of goods and to drive the same the driver should have transport licence with specific endorsement with badge number. But in the present case the driver of the auto was having only LMV non-transport, issued by RTA, Narsipatnam only to to drive

LMV non-transport, which is not sufficient to drive the crime vehicle. Moreover, the three wheeled goods auto requires specific skills, to drive the same, the driver should have specific skills and he should have specific endorsement to drive the vehicle. In order to substantiate his contention that the driving licence possessed by the driver of the crime vehicle as invalid one, the 2nd respondent examined one

M.Murali Krishna, MVI, Narsipatnam as RW-2. The Rw-2 specifically stated that a person holding the driving licence in case of Kona Ganesh cannot drive an auto rickshaw as one should have driving licence transport with endorsement AR with badge. The driving licence extract of Kona Ganesh is marked as Ex.X.1 and Ex.X.2 is the M.V.I report prepared by him. In the cross examination of RW-2 admits that the Auto Rickshaw comes under the category of LMV and further that a person who is having a driving licence of non transport is permitted to drive the 9

LMV vehicle with laden weight of less than 7500 Kgs but that driving licence must have endorsement of transport AR with badge. Lastly RW-2 denied the suggestion that driving licence holder under Ex.X.1 has not violated any provisions of the MV Act being it is a valid licence as he drove the crime vehicle being categorised as LMV and its laden weight being less than 7500 Kgs.

14)The learned counsel for the respondent no.2 has contended that the 1st respondent who was not having effective and valid licence on the date of accident and thus willfully violated terms and conditions of the policy, as such the liability of the insurance company indemnify the 2nd respondent as owner of the crime vehicle is exonerated in support of the said contention he has placed reliance on the following judgments in support of the said contention.

2008 ACJ 1336 (SC) National Insurance Co. (Vs.) Kusum Rai

It is observed that driver of the accident vehicle is holding a licence to drive light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently therefore there was breach of contract of insurance by the insured.

2008 ACJ @ Page 1307 (SC) Sardari and Others (Vs.) Sushil Kumar and

Others

The Apex Court by referring the various judgments viz.,

Iswara Chandra and others (Vs.) The Oriental Insurance Co.,

National Insurance Co., (Vs.) Kusumarai,

National Insurance Co. (Vs.) Swaran Singh,

New India Assurance (Vs.)Prabulal and

Oriental Insurance (Vs.) Prithvi Raj and others held that :-

The Insurance Company has no liability if the breach of conditions of contract is ex-facie apparent from records. It is the duty of the owner bound statutorily to ensure that vehicle is handed over to only those persons who has valid and effective driving licence.

2004 ACJ @ Page 1 (SC) National Insurance Co. Ltd., (Vs.) Swaran Singh

Where the driver held no licence, the insurance co. can succeed in getting exoneration and the company in the present case has proved its case that the driver of the 10 offending vehicle did not possess valid and effective licence.

At para 82 their lordships clearly observed that we have analysed the relevant provisions of the said Act in terms where of a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of

Sec.5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Sec.3 or 4 of the Act. In a case therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven the owner of the vehicle by such a person, the insurer is entitled to succeed in its defense and avoid liability. HERE THE OWNER CUM

DRIVER DROVE THE SAID VEHICLE WITHOUT VALID LICENCE.

Another Judgment delivered by the Madras High Court in The Oriental

Insurance Co. (Vs.) Sivammal & Others

In this judgment their lordships gave a clarification with regard to the weight age of the vehicle in Para No.30 of the judgment as there can be no dispute over the fact that various types of licences are issued for driving different types of vehicles. It cannot be disputed that a person should be possesses of an effective driving licence defined under Sec.3 of MV Act 1988, an effective driving licence would mean a valid licence, both as regards the period as well as the type of the vehicle.

If the validity of the licence is to be determined only pm the basis of weight of the vehicle, then all would be required for a person is to obtain a licence for a heavy motor vehicle, and such a person need not obtain separate licence either for light motor vehicle, auto rickshaw or two wheeler. It is appreciated that each of the said types of vehicles operates on different mechanism driving skill, capacity to balance the vehicles. A driver of four wheeler cannot be presumed to know how to drive a two wheeler which is essentially required the capacity to balance the vehicle.

Likewise the mechanism of the goods auto rickshaw is also different considering that the process of acceleration, operating clutch and gear and applying brakes etc., are totally 11 different. Therefore, the mere weight of the vehicle alone cannot be deciding factor.

Another Judgment reported in 1989 AIR (SC) Kasiram Yadav (Vs.) Oriental

Fire and General Insurance Co.

It was held in Para 4 that Sec.96 of the MV Act 1939 imposes duty on the insurer to satisfy judgment against persons insured in respect of third party risks. Sub Section 2 (b) 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there is a breach on specified conditions of policy. One of the conditions specified in clause

(ii) is that the vehicle should not be driven by any person who is not duly licenses or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualifications it is not in dispute that the certificate of insurance concerned in this case contains this condition. If therefore there is a breach of condition the insurer will not be liable to indemnify the owner.

Another Judgment by Justice Noushad Ali in M.A.C.M.A.No. 5482 of 2008 decided on 24-06-10(AP) it was held in para 16 to 18

Mere holding a light motor vehicle is not sufficient to drive a transport vehicle. Licence to be effective as required under

Sec.3 of MV Act should have an authorization entitling the holder to drive the particular class of vehicle. Hence, the

Insurance co. is not liable to pay any compensation. It was also held that it is not a fit case to direct the Insurance Co. to pay and recover amount from the owner. It was also held that the claimant may proceed to recover the amount from the owner.

15)The learned counsel for the claim petitioner has contended that Ex.X.1 DL abstract possessed by the driver of the crime vehicle is a valid driving licence and driving of the crime vehicle with Ex.X.1 without endorsement of transport and badge that to petitioner being a 3rd party Ex.B.1 policy is perfectly tenable in law and the insurance company cannot escape its liability to pay compensation to the petitioner in support of the proposition reliance is placed on the judgment of the

Hon'ble Supreme Court of India between Kulwant Singh and others (vs.)

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Oriental Insurance Co. Ltd. Reported in 2014 ACJ 2873 where in it was held that:

“Insurance Company disputes its liability on the ground that driver had licence to drive light motor vehicle but he was driving a goods vehicle – Tribunal mulcted liability on the insurance company on the ground that offending vehicle was 'light goods vehicle' and driver had a valid driving licence –

High Court observed that 'light motor vehicle' cannot be equated with 'light goods vehicle there was breach of policy as driver did not have valid and effective driving licence and granted recovery rights to insurance company – Whether a person holding driving licence to drive 'light motor vehicle' was authorised to drive 'light goods vehicle' and there was no breach of insurance policy – Held: yes; order of High Court set aside the Tribunal's order restored”

Upon considering the latest judgment of Hon'ble Supreme Court of India there is no force in the contention of the learned counsel for the said respondent that Ex.X.1 Driving Licence is not a valid driving licence and on that the insurance company is exonerated from its liability to indemnify by the 2nd respondent in respect of the said accident.

16)The learned counsel for the 2nd respondent has contended that in the present case as the petitioner was sitting by the side of the driver at the time of accident violation of Section 125 of MV Act and thereby it amounts to contributory negligence on the part of the petitioner. Of course this fact sitting by the side of the driver is evident by seeing the Ex.A.1 FIR, Ex.A.4 charge sheet. But at the same time it is not the route cause for the occurrence of the accident. So far the determination of quantum of compensation is concerned, the claim petitioner is no doubt come up with bills in support of the general and special damages to the the maximum extent. The other claims for which as there is no documentary evidence some guess work is needed by following the Judgment of the

Honourable Supreme Court in R.D.HATTANGADI Vs. PEST CONTROL

(INDIA) PRIVATE LIMITED, reported in 1995(1) SCC 551.

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17)The petitioner claimed Rs.10,000/- towards transportation to hospital but not to producing transport bills. In the present case, the petitioner has taken treatment in different hospitals as such sum of Rs.5,000/- is granted under this head being proper and reasonable and the head of extra nourishment and medicine Rs.50,000/- is claimed by the petitioner. The petitioner has filed medical bills and supported medical prescriptions which are marked as Ex.A.5 and

Ex.A.6. the petitioner has also filed cash receipts which are marked as Ex.A.7 and Ex.A.8 to show that he has take physiotherapy treatment. In the present case the petitioner is not examined concerned doctor who treated the petitioner and also not examined concerned from the said hospitals to speak the genuineness of its medical bills. So also not examined physiotherapist from whom the petitioner has taken treatment. In over all a sum of Rs.15,000/- is granted for medical treatment and medicines another Rs.5,000/- towards extra nourishment. So far determination of the loss of contributions earning capacity due to disability suffering the petitioner in the above accident is concerned. The petitioner has shown his age is 25 years, but he is not chosen to file the age proof. However, by taking of his physical features appearing positive photo on the claim petitioner his age is taken above 25 years. According to PW-1 his occupation as Rod Bending and building contract works and further he used to

Rs.15,000/- per month but he is not chosen to any proof in support of occupation and income, if such is the case even then by taking the status of the petitioner as non earning member by his monthly income is notionally taken Rs.5,000/- per month by following judgment of the Hon'ble Supreme Court of India in New

India Assurance Co. Ltd. (vs.) Smt. Kalpana & Other reported in 2007 Air

SCW 1316. Then the yearly income of the deceased comes to Rs.60,000/- by applying multiplier '17' it comes to Rs.10,20,000/- and the disability portion of it @ 10% comes to Rs.1,02,000/- towards contributory negligence of the petitioner. The petitioner was also treated as inpatient about one month and under went treatment as an out patient then the loss of income during the medical period is granted to the period a sum of Rs.20,000/-.A sum of 14

Rs.3,000/- is granted towards damage to cloths etc. Hence, the total compensation amount which the petitioner is entitled to comes to

Rs.1,50,000/-. Hence this issue is answered affirmatively in favour of the petitioner if not for the total claim.

18)ISSUE NO.3: To what relief

In view of the aforesaid discussion on issue Nos.1 and 2, this court can award an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the petitioner towards compensation from the Respondents 1 and 2.

Accordingly, this issue is answered in favour of the petitioner.

19)In the result, petition is allowed in part with proportionate costs directing the respondents 1 and 2 jointly and severally to pay an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the petitioner towards compensation together with interest @ 7.5% per annum from the date of petition till the date of realisation. Two months time is granted to deposit the compensation amount into the court and on such deposit, the petitioner is permitted to withdraw an amount of Rs.1,00,000/- (Rupees one lakh only) out of the compensation awarded to him.

The balance compensation amount of petitioner shall be kept under fixed deposit in any nationalized bank for a period of two years. Rest of the claim is dismissed.

Advocate fees is fixed at Rs.2,000/- (Rupees two thousand only).

Dictated to the Grade-III Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 1st day of May, 2015.

I ADDL.DISTRICT JUDGE-CUM-MOTOR

ACCIDENTS CLAIMS TRIBUNAL:

VISAKHAPATNAM.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER:FOR RESPONDENTS:

P.W.1 – Malisella GaneshR.W.1 - R. Lakshmana Rao

P.W.2 – Dr.B.D. NaiduR.W.2 – N. Murali Krishna

EXHIBITS MARKED

FOR PETITIONER:

Ex.A.1: Attested copy of FIR in Cr.No.51/2010 of Kothakota P.S.

Ex.A.2: Attested copy of MVI Report

Ex.A.3: Attested copy of wound certificate issued by Primary Health Centre, Ravi Kamatam

Ex.A.4: Attested copy of Charge sheet

Ex.A.5: Bunch of bills 5 in number for sum of Rs.35,289/-

Ex.A.6: Bunch of prescriptions and reports six in number

Ex.A.7: Cash receipt for Rs.6,000/-

Ex.A.8: Cash receipt for Rs.20,000/-

Ex.A.9: Disability certificate

FOR RESPONDENTS:

Ex.B.1 : Policy copy

Ex.B.2 : DL Extract of Ganesh Kona bearing no. DELF AP 33152962009 issued by Addl. Licensing Authority, Narsipatnam dt.19-09-2011 'X' Series documents

Ex.X.1: Extract of DL of Ganesh Kona.

I A.D.J./VSP

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IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-I

ADDl. DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI N. GANESH BABU, B.Com.,B.L.,

CHAIRMAN, MACT-CUM-

I ADDL. DISTRICT JUDGE.

FRIDAY, THIS THE 1st DAY OF MAY, 2015

M.O.P.NO.782/2011

Between:

Sri Malisetla Ganesh, s/o. Malisetla Ramu, Hindu, Aged 25 Years, Residing at Maatchavanipalem village, Dondapudi Post, Ravikamatam Mandalam, Visakhapatnam District.

...Petitioner

And:

1. Sri Kona Ganesh, S/o. Kalyanam, Hindu, Aged 23 Years, Residing at Mediwada Village, Ravikamatam Mandalam, Visakhapatnam District.

2. United India Insurance Co., Ltd., Represented by its Senior Divisional Manager, Anakapalle, Visakhapatnam District.

...Respondents

This Petition has come up on 20-04-2015 for final hearing before me in the presence of Sri J.A. Naidu, Advocate for the Petitioner and R1 remained exparte, Smt. S. Chandra Kala, Advocate for 2nd Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1)This claim petition is filed for a sum of Rs.2,00,000/- (Rupees two lakhs only) towards damages for the injuries received by the petitioner in the Motor

Vehicle Accident occurred on 14-10-2010 at G.Cheedipalli (V) Ravikamatam (M)Visakhapatnam Dist.

2)The petition averments in brief are that on 14-10-2010 the petitioner went to Ravikamatam on a bus to grind coconut oil and after completing his work he boarded the auto bearing Regn. No.AP 31 TW 1492 to return to his house from

Ravikamatam and when they reached near G.Cheedipalli Jn., about 2.00 PM the driver of the auto drive the same with high speed and also with a rash and negligent manner without blowing horn and tried to overtake one girl who is proceeding on the road as a result the auto turned turtle. As a result the petitioner received grievous injuries including dislocation of right shoulder and left 2 ear was totally removed and he also received the injuries over the forehead, left hand, left hand knee, left leg knee and all over the body and immediately the petitioner shifted to the Govt. General Hospital, Narsipatnam on 108 ambulance and provided first aid and then he shifted to KGH,Visakhapatnam and also referred to ENT Hospital, Visakhapatnam and operation was conducted and also applied POP and MRI Scan and also treated as inpatient about one month and underwent treatment as an outpatient till now.

3)The petitioner suffered loss due to the injuries in the said accident and spend much more amount for medicines, transport, extra nourishment food etc., and also spend some amount for his assistance/attendants in the hospital and also for their food and shelter at Visakhapatnam. The petitioner is aged 25 years and he is very active and efficient person and used to do the rod bending and building contract works and earning Rs.500/- per day and assist to the maintenance of his family now on account of the accident the petitioner has lost his earning power and he is a permanently disabled for his job. The loss of the petitioner will not be calculated in terms of money and if the driver of the auto has taken minimum care the accident may not be occurred. The accident was occurred only due to rash and negligent driving of the driver of the auto. The

SHO, Kothakota Police has registered the crime against the driver of the above auto u/s.338 IPC in Cr.No.51/2010 and filed charge sheet after due investigation.

The 1st respondent is owner-cum-driver of the crime auto and 2nd respondent is insurer of the said auto and hence both the respondents are jointly and severally liable to pay the compensation to the petitioner.

4)The R.1 is remained exparte, Permission accorded to respondent no.2 under section 170 of MV Act vide order in IA no.828/2014 dt.08-12-2014. The R.2 ultimately contesting this claim petition by filing a detailed counter in which all the material allegations made in the petition are denied, false and petition is not maintainable either of facts or in law. This respondent does not admit that petitioner is aged 25 years, and working as a rod bender and earning Rs.15,000/- 3 pm and petitioner is put to strict proof of the same. This respondent also does not admit the narration made in the petition relating to the manner in which the accident is described to have taken place. The respondent also not at all aware of the alleged treatment taken by the petitioner in the hospitals as mentioned by him and also spent an amount of Rs.50,000/- towards medicines, Rs.20,000/- towards transport, Rs.20,000/- towards loss of earnings the amount spent for medical treatment. In fact the accident occurred due to negligence of the petitioner but not due to the negligent driving of the driver of crime vehicle. In fact the petitioner sat on the side of the driver is the violation of MV Act and also policy conditions. It amounts to contributory negligence on the part of the petitioner. The quantum of the compensation amount is all false, baseless, out of proportion, hypothetical. The petitioner is also put to strict proof of that the accident vehicle having all the valid vehicular documents as 'C' book and other relevant documents such as fitness, permit etc., at the time of accident, but for which this respondent is not liable to pay any compensation and in the above mater, the company got investigated and in the investigation it was revealed that the driver K.Ganesh is the owner of the vehicle. He is the owner-cum driver. The vehicle involved in the accident is an auto which is a transport vehicle. To drive an auto one should possess transport licence with auto rickshaw endorsement.

But as per D.L. Possessed by R.1 the driver is only authorised to drive LMV non- transport vehicle. He is not having transport driving licence with an endorsement to drive a passenger auto. As the owner he is signatory to the contract of insurance. He is well aware of terms and conditions of policy and then he is knowing that he himself not allowing to drive the offending vehicle and caused accident without holding valid and effective licence and thereby willfully violated the terms and conditions of the policy and for this act he is not entitled for any indemnification from the said R.2. According to policy conditions ”the driver while on duty should posses valid and effective licence to drive the vehicle , but in the above matter he did not possess the same, thus R.1 violated the terms and conditions of policy by allowing himself to drive the said vehicle without proper 4 licence. As per Sec.3 of MV Act 'No person shall be drive a vehicle in any public place unless he holds a valid and effective licence. But in the above mater the accused driver-cum-owner drove the vehicle without proper licence, hence the

R.2 is not liable to pay any compensation as the driver-cum-owner committed the fundamental breach of contract of insurance as well as the provisions of MV Act.

The petitioner has to prove that the driver of the offending vehicle should posses valid and subsisting driving licence to drive the vehicle as on the date of accident but for which this respondent is not liable for any indemnification. As per Sec.134

(c) of MV Act it is the mandatory duty of the insured/1st respondent herein to furnish the particulars of policy, date, time and place of accident, particulars of the injured and the name of the driver and particulars of the driving licence but the insured/2nd respondent herein has not complied with statutory demand.

Hence, R-2 is not liable to pay any compensation to the petitioner, if any entitle by the applicant, the R.1 alone liable. The petitioner has not furnished any particulars with regard to the insurance of the vehicle and as such this respondent puts the petitioner to strict proof that the accident vehicle was duly insured with this respondent at the time of the accident. Even if the policy was issued, unless and until the said policy was complied under Sec.64 VB of Insurance Act, this respondent is not liable to pay any compensation. It is also to be proved by the petitioner that the accident was occurred due to the negligence of the driver of the Innova Car as otherwise this respondent is not liable. The liability, if any, of this respondent has been defined and delimited both under the terms and conditions of contract of insurance if any,m and also under provisions of MV Act.

Therefore, this respondent's liability cannot exceed such limit under any circumstances. If any compensation payable to the petitioner, the interest should not exceed 6% towards compensation as per RBI guide lines. This respondent company seeks protection under Sec.147, 149(2) of MV Act. As per Sc.158(6) of

MV Act it is a mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer within 30 days from the date of information but the concerned police station failed to forward the documents and 5 not complied with the statutory demand. Hence this petition is liable to be dismissed.

5)Upon the aforesaid pleadings on the parties the following issues were settled for trial:

1.Whether the petitioner sustained injuries in the accident that occurred, due to rash and negligent driving of the auto rickshaw bearing Regn. No. AP 31 TW 1492 by its driver ?

2.Whether the petitioner is entitled to compensation, if so to what amount and from whom?

3.To what relief?

6)During the course of the trial claim petitioner in order to establish his claim examined himself as PW-1 and Dr.B.D.Naidu as PW-2 to prove the disability sustained by him on account of injuries received in the above accident and got marked Exs.A.1 to A.9 where as the Respondent No.2 examined its Asst. Manager

Sri R.Lakshmana Rao as RW-1 and the summoned witness MV Inspector,

Narsipatnam Sri M. Murali Krishna examined as RW-2 and got marked Exs.B.1,

B.2 and Ex.X.1.

7)Heard learned learned counsel for the petitioner and the learned counsel for the R.2 filed written arguments on behalf of R.2.

8)Issue No.1. Whether th petitioner sustained injuries in the accident

that occurred, due to rash and negligent driving of the auto rickshaw

bearing Regn. No. AP 31 TW 1492 by its driver ?

In the instant case the claim petitioner alone examined himself as PW-1 but no any independent witness who actually witnessed the occurrence whose names are cited in the charge sheet which is marked as Ex.A.4. Even then the evidence of PW-1 can be accepted if it is trustworthy that to his position as an injured eye witness, evidentiary value shall be attached to him in that capacity as per the settled proposition of law .

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9)The evidence of PW-1 M.Ganesh so far it relates to his examination in chief is almost all the same as averred in the petition as extracted supra. In the cross examination on behalf of insurance company PW-1 has denied the suggestion that he was travelling in the back side but not in the driver seat as suggested to him.

Immediately the PW-1 has stated that he do not know whether his complaint

Ex.A.1 reads that he was sat by the side of the driver in the auto. Similarly the insurance company got admission from PW-1 that he has taken the entire medical treatment in the Govt. Hospital for which he adds that he purchased some medicines privately. The trend of the cross examination of this PW-1 would show the ultimate defence of the insurance company in resisting the claim petition is on the allegation of contributory negligence of the petitioner for the occurrence of the accident and further the very fact that the petitioner herein has received injuries on account of above accident and that the PW-1 has taken the major treatment in the Govt. Hospital, Visakhapatnam. The petitioner has come up with a wound certificate issued by primary health center, Ravikamatam to the effect that the petitioner received altogether 5 injuries out of that the injury to the shoulder is the grievous in nature. It is also the case of the petitioner that the above grievous injury made him permanently disabled and in order to prove the said fact the claim petitioner has also examined Dr.B.D.Naidu.

10)According to PW-2 he is running own nursing home by name Sri Lakshi

Nursing Home, Visakhapatnam after attaining superannuation as Professor of

Orthopedic KGH, Visakhapatnam 10 years back. He examined M.Ganesh on 10- 10-2012 in his hospital and observed multiple abrasions on right shoulder and multiple nerve injuries on right hand and he got multiple cut injuries on let ear and he cannot hear and he assessed 50% partial and permanent disability to that effect he issued disability certificate under Ex.A.9. In a cross examination PW-2 has admitted that he has not treated nor operated PW-1 in the KG Hospital. He has treated PW-1 in his nursing home after he was discharged from KGH but he has treated him as a outpatient. His assessment relating to disability of 50% 7 covers both the shoulder injury and ear injury. Lastly PW-2 has denied the suggestion that he being a orthopaedic doctor cannot speak about the injury to ear and damage of hearing capacity. He has shown the 50% disability according to the rules lay down by All India Limb Manufacturing Corporation of India,

Kanpur but this fact he has not mentioned in Ex.A.9. The petitioner has filed bunch of prescriptions and reports which is marked as Ex.A.6. As per this Ex.A.6 the PW-1 was treated in Govt. ENT Hospital,Visakhapatnam and in the OP card bearing Regn. No.37340. It is mentioned on the diagnosis right ear injury and right ear pinna repair was done. As per the audiological evaluation report bilateral hearing sensitivity within normal limits. Though the petitioner has taken hand over summons to the Doctor who treated him in the Govt. ENT Hospital but he was not examined. As rightly contended by the learned counsel for the respondent PW-2 is not competent to being a Orthopaedic surgeon to assess the disability if any to the injury received to the ear by PW-1 in the above accident.

Under these circumstances the percentage of disability suffering by PW-1 on account of fracture alone is taken and its percentage is 10%. Hence this issue is answered affirmatively in favour of the petitioner.

11) Issue No.2 : Whether the petitioner is entitled to compensation, if so

to what amount and from whom?

While dealing with Issue No.1 the finding of this court is that the driver of the crime vehicle which is owned by the 1st respondent herein is squarely responsible for turned turtle of the crime vehicle which resulted the petitioner who was travelling in the said vehicle received grievous/fracture injury. And that the driver of the 1st respondent alone accountable for the above accident due to his rash and negligent driving. It is not in dispute that the crime vehicle was insured with respondent no.2 and said insurance coverage under Ex.B.1 policy was in force on the date of above accident. If so, in the normal circumstances the petitioner is entitled to receive the compensation, unless the respondent no.2 could able to prove that the driver of the crime vehicle was not having valid driving licence at the time of the accident holds water.

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12)In order to prove its case of non possessing valid DL by the driver of crime vehicle at the time of accident the R.2 insurance company examined its employee

Sri R.Lakshmana Rao as RW-1 and a summoned witness MVI Sri M. Murali

Krishna as RW-2. The evidence of RW-1 is nothing but replica of the defence taken by respondent No.2 as extracted supra. In the cross examination RW-1 admits that the policy under Ex.B.1 was in force on the date of accident and that on the non transport driving licence one can drive the LMV vehicle, crime vehicle is an auto. Lastly RW-1 denied the suggestion that there is no violation of terms and conditions of the the Ex.B.1 policy committed by the R.1 with the existing driving licence under Ex.B.2 by its driver at the time of the accident as it is valid driving licence and that to avoid payment of compensation to the petitioner he is giving such false defence.

13)The contention of the learned counsel for the 2nd respondent is that the crime vehicle is a three wheeled goods auto and it meant for transport of goods and to drive the same the driver should have transport licence with specific endorsement with badge number. But in the present case the driver of the auto was having only LMV non-transport, issued by RTA, Narsipatnam only to to drive

LMV non-transport, which is not sufficient to drive the crime vehicle. Moreover, the three wheeled goods auto requires specific skills, to drive the same, the driver should have specific skills and he should have specific endorsement to drive the vehicle. In order to substantiate his contention that the driving licence possessed by the driver of the crime vehicle as invalid one, the 2nd respondent examined one

M.Murali Krishna, MVI, Narsipatnam as RW-2. The Rw-2 specifically stated that a person holding the driving licence in case of Kona Ganesh cannot drive an auto rickshaw as one should have driving licence transport with endorsement AR with badge. The driving licence extract of Kona Ganesh is marked as Ex.X.1 and Ex.X.2 is the M.V.I report prepared by him. In the cross examination of RW-2 admits that the Auto Rickshaw comes under the category of LMV and further that a person who is having a driving licence of non transport is permitted to drive the 9

LMV vehicle with laden weight of less than 7500 Kgs but that driving licence must have endorsement of transport AR with badge. Lastly RW-2 denied the suggestion that driving licence holder under Ex.X.1 has not violated any provisions of the MV Act being it is a valid licence as he drove the crime vehicle being categorised as LMV and its laden weight being less than 7500 Kgs.

14)The learned counsel for the respondent no.2 has contended that the 1st respondent who was not having effective and valid licence on the date of accident and thus willfully violated terms and conditions of the policy, as such the liability of the insurance company indemnify the 2nd respondent as owner of the crime vehicle is exonerated in support of the said contention he has placed reliance on the following judgments in support of the said contention.

2008 ACJ 1336 (SC) National Insurance Co. (Vs.) Kusum Rai

It is observed that driver of the accident vehicle is holding a licence to drive light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently therefore there was breach of contract of insurance by the insured.

2008 ACJ @ Page 1307 (SC) Sardari and Others (Vs.) Sushil Kumar and

Others

The Apex Court by referring the various judgments viz.,

Iswara Chandra and others (Vs.) The Oriental Insurance Co.,

National Insurance Co., (Vs.) Kusumarai,

National Insurance Co. (Vs.) Swaran Singh,

New India Assurance (Vs.)Prabulal and

Oriental Insurance (Vs.) Prithvi Raj and others held that :-

The Insurance Company has no liability if the breach of conditions of contract is ex-facie apparent from records. It is the duty of the owner bound statutorily to ensure that vehicle is handed over to only those persons who has valid and effective driving licence.

2004 ACJ @ Page 1 (SC) National Insurance Co. Ltd., (Vs.) Swaran Singh

Where the driver held no licence, the insurance co. can succeed in getting exoneration and the company in the present case has proved its case that the driver of the 10 offending vehicle did not possess valid and effective licence.

At para 82 their lordships clearly observed that we have analysed the relevant provisions of the said Act in terms where of a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of

Sec.5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Sec.3 or 4 of the Act. In a case therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven the owner of the vehicle by such a person, the insurer is entitled to succeed in its defense and avoid liability. HERE THE OWNER CUM

DRIVER DROVE THE SAID VEHICLE WITHOUT VALID LICENCE.

Another Judgment delivered by the Madras High Court in The Oriental

Insurance Co. (Vs.) Sivammal & Others

In this judgment their lordships gave a clarification with regard to the weight age of the vehicle in Para No.30 of the judgment as there can be no dispute over the fact that various types of licences are issued for driving different types of vehicles. It cannot be disputed that a person should be possesses of an effective driving licence defined under Sec.3 of MV Act 1988, an effective driving licence would mean a valid licence, both as regards the period as well as the type of the vehicle.

If the validity of the licence is to be determined only pm the basis of weight of the vehicle, then all would be required for a person is to obtain a licence for a heavy motor vehicle, and such a person need not obtain separate licence either for light motor vehicle, auto rickshaw or two wheeler. It is appreciated that each of the said types of vehicles operates on different mechanism driving skill, capacity to balance the vehicles. A driver of four wheeler cannot be presumed to know how to drive a two wheeler which is essentially required the capacity to balance the vehicle.

Likewise the mechanism of the goods auto rickshaw is also different considering that the process of acceleration, operating clutch and gear and applying brakes etc., are totally 11 different. Therefore, the mere weight of the vehicle alone cannot be deciding factor.

Another Judgment reported in 1989 AIR (SC) Kasiram Yadav (Vs.) Oriental

Fire and General Insurance Co.

It was held in Para 4 that Sec.96 of the MV Act 1939 imposes duty on the insurer to satisfy judgment against persons insured in respect of third party risks. Sub Section 2 (b) 96 provides that the insurer is not liable to satisfy the judgments against the person insured if there is a breach on specified conditions of policy. One of the conditions specified in clause

(ii) is that the vehicle should not be driven by any person who is not duly licenses or by any person who has been disqualified for holding or obtaining driving licence during the period of disqualifications it is not in dispute that the certificate of insurance concerned in this case contains this condition. If therefore there is a breach of condition the insurer will not be liable to indemnify the owner.

Another Judgment by Justice Noushad Ali in M.A.C.M.A.No. 5482 of 2008 decided on 24-06-10(AP) it was held in para 16 to 18

Mere holding a light motor vehicle is not sufficient to drive a transport vehicle. Licence to be effective as required under

Sec.3 of MV Act should have an authorization entitling the holder to drive the particular class of vehicle. Hence, the

Insurance co. is not liable to pay any compensation. It was also held that it is not a fit case to direct the Insurance Co. to pay and recover amount from the owner. It was also held that the claimant may proceed to recover the amount from the owner.

15)The learned counsel for the claim petitioner has contended that Ex.X.1 DL abstract possessed by the driver of the crime vehicle is a valid driving licence and driving of the crime vehicle with Ex.X.1 without endorsement of transport and badge that to petitioner being a 3rd party Ex.B.1 policy is perfectly tenable in law and the insurance company cannot escape its liability to pay compensation to the petitioner in support of the proposition reliance is placed on the judgment of the

Hon'ble Supreme Court of India between Kulwant Singh and others (vs.)

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Oriental Insurance Co. Ltd. Reported in 2014 ACJ 2873 where in it was held that:

“Insurance Company disputes its liability on the ground that driver had licence to drive light motor vehicle but he was driving a goods vehicle – Tribunal mulcted liability on the insurance company on the ground that offending vehicle was 'light goods vehicle' and driver had a valid driving licence –

High Court observed that 'light motor vehicle' cannot be equated with 'light goods vehicle there was breach of policy as driver did not have valid and effective driving licence and granted recovery rights to insurance company – Whether a person holding driving licence to drive 'light motor vehicle' was authorised to drive 'light goods vehicle' and there was no breach of insurance policy – Held: yes; order of High Court set aside the Tribunal's order restored”

Upon considering the latest judgment of Hon'ble Supreme Court of India there is no force in the contention of the learned counsel for the said respondent that Ex.X.1 Driving Licence is not a valid driving licence and on that the insurance company is exonerated from its liability to indemnify by the 2nd respondent in respect of the said accident.

16)The learned counsel for the 2nd respondent has contended that in the present case as the petitioner was sitting by the side of the driver at the time of accident violation of Section 125 of MV Act and thereby it amounts to contributory negligence on the part of the petitioner. Of course this fact sitting by the side of the driver is evident by seeing the Ex.A.1 FIR, Ex.A.4 charge sheet. But at the same time it is not the route cause for the occurrence of the accident. So far the determination of quantum of compensation is concerned, the claim petitioner is no doubt come up with bills in support of the general and special damages to the the maximum extent. The other claims for which as there is no documentary evidence some guess work is needed by following the Judgment of the

Honourable Supreme Court in R.D.HATTANGADI Vs. PEST CONTROL

(INDIA) PRIVATE LIMITED, reported in 1995(1) SCC 551.

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17)The petitioner claimed Rs.10,000/- towards transportation to hospital but not to producing transport bills. In the present case, the petitioner has taken treatment in different hospitals as such sum of Rs.5,000/- is granted under this head being proper and reasonable and the head of extra nourishment and medicine Rs.50,000/- is claimed by the petitioner. The petitioner has filed medical bills and supported medical prescriptions which are marked as Ex.A.5 and

Ex.A.6. the petitioner has also filed cash receipts which are marked as Ex.A.7 and Ex.A.8 to show that he has take physiotherapy treatment. In the present case the petitioner is not examined concerned doctor who treated the petitioner and also not examined concerned from the said hospitals to speak the genuineness of its medical bills. So also not examined physiotherapist from whom the petitioner has taken treatment. In over all a sum of Rs.15,000/- is granted for medical treatment and medicines another Rs.5,000/- towards extra nourishment. So far determination of the loss of contributions earning capacity due to disability suffering the petitioner in the above accident is concerned. The petitioner has shown his age is 25 years, but he is not chosen to file the age proof. However, by taking of his physical features appearing positive photo on the claim petitioner his age is taken above 25 years. According to PW-1 his occupation as Rod Bending and building contract works and further he used to

Rs.15,000/- per month but he is not chosen to any proof in support of occupation and income, if such is the case even then by taking the status of the petitioner as non earning member by his monthly income is notionally taken Rs.5,000/- per month by following judgment of the Hon'ble Supreme Court of India in New

India Assurance Co. Ltd. (vs.) Smt. Kalpana & Other reported in 2007 Air

SCW 1316. Then the yearly income of the deceased comes to Rs.60,000/- by applying multiplier '17' it comes to Rs.10,20,000/- and the disability portion of it @ 10% comes to Rs.1,02,000/- towards contributory negligence of the petitioner. The petitioner was also treated as inpatient about one month and under went treatment as an out patient then the loss of income during the medical period is granted to the period a sum of Rs.20,000/-.A sum of 14

Rs.3,000/- is granted towards damage to cloths etc. Hence, the total compensation amount which the petitioner is entitled to comes to

Rs.1,50,000/-. Hence this issue is answered affirmatively in favour of the petitioner if not for the total claim.

18)ISSUE NO.3: To what relief

In view of the aforesaid discussion on issue Nos.1 and 2, this court can award an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the petitioner towards compensation from the Respondents 1 and 2.

Accordingly, this issue is answered in favour of the petitioner.

19)In the result, petition is allowed in part with proportionate costs directing the respondents 1 and 2 jointly and severally to pay an amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the petitioner towards compensation together with interest @ 7.5% per annum from the date of petition till the date of realisation. Two months time is granted to deposit the compensation amount into the court and on such deposit, the petitioner is permitted to withdraw an amount of Rs.1,00,000/- (Rupees one lakh only) out of the compensation awarded to him.

The balance compensation amount of petitioner shall be kept under fixed deposit in any nationalized bank for a period of two years. Rest of the claim is dismissed.

Advocate fees is fixed at Rs.2,000/- (Rupees two thousand only).

Dictated to the Grade-III Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 1st day of May, 2015.

I ADDL.DISTRICT JUDGE-CUM-MOTOR

ACCIDENTS CLAIMS TRIBUNAL:

VISAKHAPATNAM.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER:FOR RESPONDENTS:

P.W.1 – Malisella GaneshR.W.1 - R. Lakshmana Rao

P.W.2 – Dr.B.D. NaiduR.W.2 – N. Murali Krishna

EXHIBITS MARKED

FOR PETITIONER:

Ex.A.1: Attested copy of FIR in Cr.No.51/2010 of Kothakota P.S.

Ex.A.2: Attested copy of MVI Report

Ex.A.3: Attested copy of wound certificate issued by Primary Health Centre, Ravi Kamatam

Ex.A.4: Attested copy of Charge sheet

Ex.A.5: Bunch of bills 5 in number for sum of Rs.35,289/-

Ex.A.6: Bunch of prescriptions and reports six in number

Ex.A.7: Cash receipt for Rs.6,000/-

Ex.A.8: Cash receipt for Rs.20,000/-

Ex.A.9: Disability certificate

FOR RESPONDENTS:

Ex.B.1 : Policy copy

Ex.B.2 : DL Extract of Ganesh Kona bearing no. DELF AP 33152962009 issued by Addl. Licensing Authority, Narsipatnam dt.19-09-2011 'X' Series documents

Ex.X.1: Extract of DL of Ganesh Kona.

I A.D.J./VSP

1

IN THE COURT OF THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-I

ADDl. DISTRICT JUDGE AT VISAKHAPATNAM

PRESENT: SRI N. GANESH BABU, B.Com.,B.L.,

CHAIRMAN, MACT-CUM-

I ADDL. DISTRICT JUDGE.

FRIDAY, THIS THE 1st DAY OF MAY, 2015

M.O.P.NO.161/2012

Between:

1) Shaik Munni, W/o. Late Shaik Yacoob, Muslim, Aged 26 Years, Krishna Colony, Bheemunipatnam, Visakhapatnam.

2) Shaik Naushad, S/o. Late Shaik Yacoob, Muslim, Aged 15 Years, Krishna Colony, Bheemunipatnam, Visakhapatnam.

3) Shaik Harshad, s/o. Late Shaik Yacoob, Muslim, Aged 13 Years, Krishna Colony, Bheemunipatnam, Visakhapatnam.

4) Shaik Karimunnisha, W/o. Late Usman Gain, Muslim, Aged 55 Years, Krishna Colony, Bheemunipatnam, Visakhapatnam.

(The petitioners 2 and 3 are being minors rep. By their mother as next fried and natural guardian i.e. 1st petitioner.)

...Petitioner

And:

1. Jagannadha Narasinga Rao @ Yerra Babu, s/o. Surappadu, Hindu, Aged 31 Years, H.No.655-153, Reddy Veedhi, 11 Ward, Tagarapuvalasa, Bhemunipatnam Mandal, Visakhapatnam District.

2. B. Naveen Kumar, S/o. Yerri Babu, Hindu, Major, D.No.744-125, Old Local Office, Bheeminipatnam, Visakhapatnam District.

3. HDFC ERGO General Insurance Co., Ltd., Reptd. By its Branch Manager, 2nd Floor, Potluri Castel, Dwarakanagar, Visakhapatnam.

...Respondents

This Petition has come up on 21-04-2015 for final hearing before me in the presence of Sri M. Ravi, Advocate for the Petitioner and R1 and R.2 remained exparte, Sri. M. Nagesh, Advocate for 3rd Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1)This petition is filed u/sec. 166 of MV Act claiming compensation of

Rs.8,00,000/- (Rupees eight lakhs only) on account of death of deceased Shaik

Yacoob s/o.Late Usman Gani, R/o. Krishna Colony, Bheemunipatnam,

Visakhapatnam District in a Motor Vehicle Accident occurred on 12-01-2011 at about 13.45 hours at Relli Street, Bheemili, Visakhapatnam District.

2

2)The petition averments in brief are that, the 1st petitioner is the wife, 2nd and 3rd petitioners are the sons and 4th petitioner is mother of the deceased. The deceased used to eking out his livelihood by running a tailoring shop independently and his service were being employed by the reputed persons of the locality in Bheemunipatnam, Visakhapatnam and he used to earn Rs.10,000/- per month and look after his family and spending the same to the family. On 12-01- 2011 at about 13.45 hours at Relli Veedhi, Bheemili, while waiting on the left side road margin by the time the 1st respondent driver of Tata Sumo bearing no. AP 31

BE 4684, drove his vehicle in a rash and negligent manner while proceeding from

Bheemili towards Dora Thota dashed against the deceased and another person by name Kalla Sanyasi Rao and Balaji from behind as a result of which the deceased fell down on road and received injuries and shifted to Bheemili Hospital and after first aid he was shifted to KG Hospital, Visakhapatnam and there he succumbed to the injuries while under going treatment. The Bheemilipatnam Police registered a case under section 304-A, 338 IPC in Cr.No.17/2011. The death caused came in a shock to the petitioners who lost the person who look after the family and the 1st petitioner who is not having any capacity to look after herself constrained to live along with the other petitioners though void created by the death of the deceased it could not be compensated in terms of money. The 1st respondent being the driver of the vehicle, 2nd respondent being the owner and 3rd respondent being the insurer of the vehicle all are jointly and severally liable to pay compensation.

3) The Respondents 1 and 2 are remained exparte. Respondent no.3 filed counter through their counsel denying the averments and allegations made in the claim petition as they all are not true, valid and tenable under law and the petitioners are put to strict proof of the allegations except those which are specifically admitted here under. The driver of the Tata Sumo said to have driven the vehicle at the time of alleged accident was not holding a valid and effective driving licence which is a breach of terms and conditions of the insurance policy 3 issued to the vehicle of the 2nd respondent. The 2nd respondent being the owner of the crime vehicle and also insured had knowing, intentionally and willfully handed over the vehicle to driver who was not holding licence as such committed breach of terms and conditions of policy and thereby this respondent is not at all liable to pay compensation to the petitioners. As per the section 134(c) of MV Act 1988, it mandatory duty of the owner/2nd respondent herein to furnish the particulars of injured or deceased and the name of the driver and particulars of driving licence but the owner/2nd respondent herein has not complied with statutory demand and as per section 158(6) of MV Act it is a mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer within 30 days from the date of information but the

Bheemunipatnam Police failed to forward the documents and not complied with the statutory demand. The petitioners claimed interest at 18% which is highly excessive and the same is contrary to the section 3 of interest Act, 1978 and the petitioner entitled to 7.5% simple interest as per reported judgment of the

Supreme Court reported in Tamilnadu Transport Corporation Ltd. (Vs.) Raja Priay & Others 2005(4) ALT 14 (SC). The petitioners are not entitled to claim any interest on non pecuniary damages as per the judgment reported in 1995 ACJ(1)

Page 366. the 3rd respondent does not admit and denies the allegations regarding the manner in which the alleged accident said to have occurred without prejudice to the amount of compensation to the due of Rs.8,00,000/- claimed by the petitioner is high, exorbitant and excessive. Hence, the 3rd respondent is not liable to pay compensation to the petitioners. The petition liable to be dismissed.

4.Upon the above said pleadings of the parties the following issues are settled.

1.Whether the deceased Shaik Yacoob died in the accident due to rash and negligent driving of driver of Tata Sumo Grand Bearing No. AP 31 BE 4684 ?

2.Whether the petitioners are entitled to compensation, it so to what amount and from which of the respondent ?

3.To what relief.

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6.During the course of trial the 1st petitioner examined herself as PW-1 one

Rafibegh to speak as an eye witness to the accident as PW-2 and got Ex.A.1 to

A.6 were marked. Whereas the R.3 examined its Senior Manager legal as RW-1 and got marked Ex.B.1 and Ex.B.2.

7.Heard.

8. Issue no.1 : Whether the deceased Shaik Yacoob died in the accident due to rash and negligent driving of driver of Tata Sumo

Grand Bearing No. AP 31 BE 4684 ?

Being it is a fatal accident, the petitioners are bound to prove the death of the deceased due to injuries received in the accident and involvement of the vehicle bearing No. AP 31 BW 4684 herein after to be referred as crime vehicle.

The PW-1 Shaik Munni categorically stated that on 12-01-2011 at about 13.45 hours at Relli Veedhi, Bheemunipatnam, while her husband walking on the left side margin the driver of the crime vehicle drove his vehicle in a rash and negligent manner and dashed against the deceased and others while under going treatment the deceased had succumbed to injuries. In support of this claim PW-1 relying on attested copy of FIR in Cr.No.17/2011 of Bheemili PS, inquest report of the deceased, MVI report, PM report, Charge sheet which are marked as Ex.A.1 to

Ex.A.5. PW-1 has conceded in her cross examination that she does not know how the accident occurred as she has not seen the occurrence. However, PW-1 reaffirmed in her cross examination that accident took place when her husband was proceeding on the road left side of the road by walk. She denied the suggestion that just before the time of accident her husband tried to cross the road without observing the traffic and there by her husband is responsible for the occurrence of the accident. It is pertinent to notice that the insurance company does not want to dispute the genuineness of the Ex.A.1 to A.5 showing the cause for the death of the deceased due to hit by crime vehicle. It is not only that the petitioners have also examined Rafibegh as PW-1 who is cited as eye witness in the charge sheet under Ex.A.5. Even PW-2 deposed that while he was proceeding

Dora Thota from Bheemili on 12-01-2011 at about 13.45 hours at Relli Veedhi the 5 crime vehicle was driven by its driver rash and negligent manner and dashed the deceased and another person from behind and the said persons received injuries and shifted to hospital. Later he came to know that they were died. Nothing could be elicited in the cross examination of this PW-2 and in fact the PW-2 denied the suggestion that Tata Sumo vehicle was coming from his back at the time of accident. By the above evidence the possibilities of occurrence of the accident due to negligence of the deceased that to while crossing the road without observing the traffic rules out and as a matter of fact no positive evidence is forthcoming from the insurance company in support of the above defence.

Hence this issue is answered affirmatively in favour of the petitioners.

9. Issue no.2 : Whether the petitioners are entitled to compensation, if so to what amount and from which of the respondent?

In the present case the respondent insurance company is not disputing the fact that they extended the insurance coverage to the crime vehicle of the R.2 as its owner and the said policy is marked as Ex.B.1 and the said policy was in force on the date of the accident. The legal defence of the insurance company is that

R.1 herein as driver of the crime vehicle was not holding a valid and effective driving licence and there by the R.2 having knowledge of the same, R.1 to drive the crime vehicle and caused accident thereby it is inviting breach of the terms and conditions of the Ex.B.1 policy as such the liability of the insurance company exonerated, if the R.2 is succeeding in establishing the above defence the R.1 and

R.2 alone shall have to pay the compensation to the petitioners.

10)The insurance company R.3 is examined its Sr. Manager Legal Claims Sri. V.

Sankar Das as RW-1 and further they got issued a legal notice to the R.1 and R.2 to produce the DL, RC etc and its office copy is marked as Ex.B.2. The examination in chief of RW-1 is nothing but reiterating the above defence of the insurance company. In the cross examination, the RW-1 denied the suggestion that his evidence to the effect that the driver of the insured vehicle was not possessing valid DL at the time of accident as false and that to avoid payment of 6 compensation to the petitioners they have taken the false stand that the driver of the crime vehicle was not having valid driving licence. The RW-1 admits that in the same accident one more person was died and another person was received injuries and OPs were filed in respect of those two cases against this R.3 vide

MOP 1110/2011 and MOP 916/2011 on the file of the court of IX ADJ and the court of XII ADJ, VSP and awards were passed in two OPs and they were carried the appeals before Hon'ble High Court challenging the liability of the insurance company fixed by the Motor Accidents Tribunal. Ultimately RW-1 says that their insurance company is liable to pay compensation.

11) The learned counsel for R.3 has contended that the defence of the insurance company that the R.1 was not having valid DL is evident by seeing Ex.A.5, charge sheet wherein the R.1 herein is arrayed as accused in crime number 17/11 of

Bheemilipatnam PS for not only the offence u/sec. 304-A IPC but also Section 134-A & B, 181 of MV Act. Infact the R.3 also tried its level best to secure the

DL, RC etc from the R.1 and R.2 by issuing notice under Ex.B.2. In spite of this allegations from the insurance company the R.1 and R.2 remained exparte.

There is no evidence on record before the court to show that this crime vehicle has been used for transport of passengers and as a transport vehicle and infact it is alleged in Ex.A.5 charge sheet that the accused did not have any driving licence. Admittedly the deceased is 3rd party to Ex.B.1 policy. Then it is a fit case where the insurance company being R.3 can be directed to pay compensation to the petitioners and then recover the same from the R.1 and R.2. In this regard reliance is placed on the judgment of the Hon'ble Supreme Court of India the

matter between National Insurance Company (Vs) Kusum Rai and Others

reported in ACJ 2006 – 1336 wherein it was held that :

“ALTHOUGH, thus, we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid license and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in 7 exercise of our jurisdiction under Article 136 of the

Constitution of India but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra)

12.Another judgment of the Hon'ble Supreme Court of India the matter between United India Insurance Co. Ltd., (Vs.) Anubai Gopi Chand Thakere and others reported in ACJ 2008 Page 213 wherein it was held that :

The High Court of Bombay, Aurangabad Bench held that the tribunal has no statutory power to direct insurance company to pay the amount of compensation for which it is to be exonerated from liability in view of fundamental breach of policy and direct that it may recover the amount from the insured. It was held that Section 168 does not empower the tribunal to issue direction to insurance company to pay the compensation when a finding is reached that it is not liable due to fundamental breach of policy.

13.But this court has come across judgment of the Hon'ble High Court of AP

in between DADI KOMURAVVA AND OTHERS Vs. GADSE BUTCHAYYA AND

OTHERS reported in 2013 (4) ALT 327.

“Compensation for death in motor accident shall not be rejected on any ground – Tribunals are constituted u/s 165 of the MV Act for adjudication upon claims for compensation in respect of accidents involving death or bodily injury to persons arising out of use of motor vehicles. Application for compensation can be made for such accidents u/s 166 of the

Act.” “Irrespective of the terms and conditions of the policy, the victims should be paid compensation as the insured or dependents of the deceased are in no way concerned with those terms and conditions – Dispute in that regard should be between insured and the insurer – Victims are not responsible as to the manner of occurring of accident – Victims should not be denied compensation for the mistake committed by owners of vehicles – Victims cannot be denied compensation on any technical grounds.”

So, upon duly considering the loyal dictum the doctrine of pay and recovery 8 shall be involved in favour of the petitioners 3rd parties.

14)Then the determination of the compensation is concern it must be just and reasonable and same is alone left for consideration before parting with judgment.

The petitioners are shown the age of the deceased 32 years, occupation as

Fashion Tailoring and monthly income of Rs.10,000/- but the petitioner have not filed any proof in support of this age, occupation and income of the deceased.

Upon taking the positive photos of the petitioners herein with referring to their age appeared, the age of the deceased is notationally taken above 35 years and his status as self employment and income is taken as Rs.5,000/- by following the judgment of the Hon'ble Supreme Court of India in New India Assurance

Co. Ltd. (vs.) Smt. Kalpana & Other reported in 2007 Air SCW 1316. Then the yearly income of the deceased comes to Rs.60,000/- and after deduction of 1/3rd towards personal expenses of the deceased had he been alive it comes to

Rs.45,000/- and by applying multiplier '15' it comes to Rs.6,75,000/-. A sum of

Rs.10,000/- is granted towards funeral expenses. The petitioners are not entitled to compensation of pain and suffering since the deceased died while under going treatment. A sum of Rs.1,00,000/- is granted towards loss of

love and affection by following judgment of the Hon'ble Supreme Court of

India in VIMAL CONVER & OTHERS (Vs.) KISHORDHAN & OTHERS II

(2013) ACC 752 SC. A sum of Rs.15,000/- is granted to the 1 st petitioner

towards loss of consortium.

15.Thus, altogether, the petitioners are entitled for total compensation amount of Rs.8,00,000/-(Rupees eight lakhs only) from the respondent no.1 to 3 jointly and severally. Accordingly, this issue is answered.

14.ISSUE NO.3: To what relief?

In view of the aforesaid discussion on issue Nos.1 and 2, this court under the present issue an amount of Rs.8,00,000/-(Rupees eight lakhs only) awarded to the petitioners towards compensation for the death of deceased 9

Shaik Yacoob in the above accident. Accordingly, this issue is answered in favour of the petitioners.

15.In the result, petition is allowed with costs directing the respondents 1 to 3 jointly and severally to pay an amount of Rs.8,00,000/-(Rupees eight lakhs only) to the petitioner at first towards compensation together with interest @ 7.5% per annum from the date of petition till the date of realisation. Two months time is granted to deposit the compensation amount into court initially by Respondent

No.3. The 3rd respondent is entitled to recover the said amount from the respondents 1 and 2 by directly filing the execution proceedings. On deposit of the compensation amount into court, the same is apportioned as follows:

1st Petitioner Rs.4,00,000/- (Rupees four lakhs only) 2nd Petitioner Rs.1,50,000/- (Rupees one lakh fifty thousand only) 3rd Petitioner Rs.1,50,000/- (Rupees one lakh fifty thousand only) 4th Petitioner Rs.1,00,000/- (Rupees one lakh only)

The 1st petitioner is permitted to withdraw an amount of Rs.1,00,000/- (Rupees one lakh only) out of the compensation amount awarded to her and remaining amount shall be invested in fixed deposit in any Nationalised Bank for a period of three years, the 4th petitioner permitted to with draw an amount of Rs.50,000/- (Rupees fifty thousand only) out of the compensation amount awarded to her and remaining amount shall be invested in fixed deposit in any Nationalised Bank for a period of three years. The compensation amounts of the petitioners 2 and 3 shall be invested in fixed deposits in any Nationalised Bank till the age of their attaining majority and thereafter they are entitled to withdraw their respective amounts with accrued interest thereon. Advocate's fee is fixed at Rs.3,000/- (Rupees three thousand only).

Dictated to the Grade-III Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 1st day of May, 2015.

I ADDL. DISTRICT JUDGE-CUM-MOTOR

ACCIDENTS CLAIMS TRIBUNAL:

VISAKHAPATNAM.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITONERS: FOR RESPONDENTS:

P.W.1 – Shaik MunniR.W.1 - V. Sankar Das P.W.2 – Rafibegh

EXHIBITS MARKED

FOR PETITIONER:

Ex.A.1: Attested copy of FIR in Cr.No.17/2011 of Bheemunipatnam P.S. Ex.A.2: Attested copy of Inquest report Ex.A.3: Attested copy of MVI Report Ex.A.4: Attested copy of PME Report Ex.A.5: Attested copy of Charge Sheet Ex.A.6: Death certificate of deceased Shaik Yacoob

FOR RESPONDENTS:

Ex.B.1: Policy Copy Ex.B.2 : Legal Notice of R.3 dt.11-11-2013

I A.D.J., Vsp

1CRL.A.NO.17/2011/MSJ/VSP

IN THE COURT OF METROPOLITAN SESSIONS JUDGE-CUM-I ADDL.

DISTRICT AND SESSIONS JUDGE :: VISAKHAPATNAM

Present :- Sri N. Ganesh Babu,B.Com.,B.L., Metropolitan Sessions Judge-cum- I Addl. District & Sessions Judge, Visakhapatnam.

Tuesday, this the twenty fifth day of June, 2013

CRL. APPEAL NO.17/2011

From which Court the appeal is : I V Addl. Chief Metropolitan Magistrate preferred Visakhapatnam.

No. of the case in that Court:C.C.No.1540/2008

No. of the Appeal:Crl. Appeal No.17/2011

Name & Description of the appellant:Dabbada Suresh, s/o Appala Naidu, aged 23 years, r/at D.No.1-29-21, Adarsanagar Colony, Peda Waltair, Visakhapatnam.

Sentence and law under which :Accused is convicted for the offence it was imposed in the lower courtunder sec.411 of IPC and sentenced to suffer SI for a period of one year

Whether confirmed, modified or :Modified. Sentence is modified reversed. If modified, the to pay a fine of Rs.2,000/-, IDSI for modification one month instead of SI for one year.

Date of presentation:21.02.2011

Date of filing:21.02.2011

Notice issued by Court to appear :22.02.2011

Bail bonds if he has been let out on bail: Crl.M.P.368/2011 dated 24.2.2011

Appellant ordered to appear:08.04.2011

Hearing:20.06.2013

Order:25.06.2013 2CRL.A.NO.17/2011/MSJ/VSP This appeal has come up on 20.06.2013 for hearing before me in the presence of Sri S.S. Murthy, Advocate for Appellant and Sri K. Pridhviraj,

Addl. Public Prosecutor for Respondent-State and the matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This criminal appeal is directed at the instance of the accused being aggrieved by the judgment of conviction in C.C.1540/2008 dated 27.1.2011 passed by the IV Addl. Chief Metropolitan Magistrate, Visakhapatnam, directing the accused to undergo simple imprisonment for a period of one year for the offence under sec.411 of IPC.

2.The appellant hereinafter referred to as accused and respondent as prosecution, as arrayed in the trial court, for the sake of convenience.

3.The case of the prosecution is that, the defacto complainant Killi Lakshmi

Narayana is a resident of Plot No.96, Sector XI, MVP Colony, Visakhapatnam.

L.W.2 Rameswarapu Chaitanya Manikanta Sai is the priest of Bhoolokamma temple situated at Sector XI, MVP Colony. L.W.3 K. Satyanarayana is another car driver who witnessed the defacto complainant with injuries and shifted him to hospital, L.W.4 Ommi Sankar at whose instance accused has got employment as driver under the defacto complainant. On 27.3.2008 defacto complainant K.

Lakshmi Narayana employed the accused as opting car driver to his Maruthi Car bearing No.AP 31AU 6008. On the same day at about 4.45 p.m., he went to

Beach and spent an hour at beach road and later he came to job work institute at 3CRL.A.NO.17/2011/MSJ/VSP MVP Colony junction. Soon after completing the work while L.W.1 was returning to home at about 6.15 p.m., even though he specifically directed his driver (accused) to go on the main road in order to reach his house, but the accused intentionally changed the route. When the defacto complainant questioned him about change of route, the accused stopped the car in a remote place on the pretext of answering call of nature. At the next moment, the accused forcibly opened the back door of the car and attacked the defacto complainant and gave fist blow on his face and robbed away his NOKIA cell phone 5300 model and money purse containing Rs.2,400/- by threatening him and fled away with the stolen property. In consequence of the beating, defacto complainant sustained bleeding injury on his mouth and lost his lower teeth. L.W.3 K. Satyanarayana who is a passer by observed the injured and shifted him to Deepthi Multi

Speciality Dental clinic at MVP Colony for treatment. L.W.9 Dr. Gogineni

Deepthi has treated the injured and issued wound certificate. Soon after completing his treatment on 28.3.2008 at 00.30 hours, defacto complainant gave report to Inspector of Police A. Narsimha Murthy who inturn registered the same as a case in Cr.No.229/2008 under sec.394 of IPC of III Town Police station,

Visakhapatnam. During the course of investigation, on 30.3.2008 at about 11.00 hours L.W.10 arrested the accused at his house situated at D.No.1-29-21,

Adarsanagar Colony, Peda Waltair, Visakhapatnam in the presence of L.W.7

Aithamsetty Sanyasi Rao and L.W.8 Nunna Namassivaya while he was in possession of stolen Nokia Cell phone 5300 model and money purse containing cash of RS.2,000/-. On interrogation of the accused, he made a disclosure statement regarding the commission of the offence and accordingly, seized the 4CRL.A.NO.17/2011/MSJ/VSP stolen property under the cover of mediators report. After completing of the investigation L.W.10 filed charge sheet for the offence under sec.394 and 411 of

IPC.

4.The trial court has taken cognizance of the offence under se.411 of IPC against the accused. Since the accused denied the accusation, prosecution let in evidence by examining P.Ws.1 to 9 and got marked Exs.P.1 to P.10 and the material objects i.e., stolen cell phone, brown colour purse and cash of

Rs.2,000/- are marked as M.Os.1 to 3.

5.Of course the accused has denied the accusation to the evidence of prosecution and opted not to let in defence. Upon considering the oral and documentary evidence, the trial court has found the accused guilty for the offence under sec.411 of IPC and accordingly passed judgment of conviction and sentence as stated supra.

6.The accused has assailed the impugned judgment of conviction and sentence through this appeal on the following grounds:

I)The calendar and judgment of the trial court is contrary to law, weight of evidence and probabilities of the case;

II) The learned Magistrate has not properly appreciated the evidence, both on question of fact and law and inf act, the accused ought to have acqutted; 5CRL.A.NO.17/2011/MSJ/VSP III) The trial court did not consider the pleadings of the counsel for the accused as regard to identification of accused by P.W.1 before the trial court;

IV) The trial court ought to have seen that there is no corroboration in the evidence of P.Ws.2 to 3 as they turned hostile and inspite of contention of the counsel for the accused that a false case is foisted against him;

V) The trial court has miserably failed to consider the major discrepancies in the oral and documentary evidence, as stated by the prosecution ;

VI) The trial court ought to have seen that the M.Os.1 to 3 were planted by the prosecution.

7.Heard the learned counsel for the accused and the learned Addl. Public

Prosecutor on behalf of prosecution.

8.The point for determination is :

“Whether the prosecution has succeeded in placing ample and cogent evidence in establishing the charge beyond all reasonable doubt and that the judgement of conviction and sentence is sustainable under law?”

9.POINT:

In the instant case, P.W.1 K. Lakshmana Narayana, is aged 75 years and he is a retired employee and pensioner and he is the father of the then A.P.P. As seen from the evidence of P.W.1, more particularly with reference to the defence 6CRL.A.NO.17/2011/MSJ/VSP of the accused through cross examination that no previous acquaintance between P.W.1 and the accused prior to 26.3.2008 and so also that on the given date the accused approached P.W.1 seeking employment as driver and on 27.3.2008 the accused joined in duty by taking P.W.1 in his car in the morning hours to job work institute at MVP Colony and also in the evening to the beach,

Vizag. P.W.1 has clearly stated in his evidence that when the accused came to his house on 26.3.2008 and asked for appointment as driver, then he informed the accused to come tomorrow with license. Accordingly, on 27.3.2008 at about 10.00 a.m., accused came to his house and informed that licnese is kept with him. On that day at about 11.00 a.m., himself and accused went to MVP colony to the type institute and returned to his house at 12.00 noon and directed the accused to come at 4.00 p.m. Then, himself and accused went to type institute and he started at 4.45 p.m., and while returning to the house, the accused had diverted the route from the main road inspite of his specific direction and when he questioned the same, then, the accused stopped the car at a lonely place on the right side of the road. Then he came out and opened the back door forcibly and gave a fist blow on m y face and took away Nokia cell phone from his shirt pocket and also money purse containing four five hundred rupee notes and then the accused went on motor cycle. It is also the case of the prosecution that one

Satyanarayana who is known to him, as he worked as driver and owner Raju who is residing beside his house and then he telephoned to his son and informed the incident and from there his son had taken him to dental hospital. He took treatment for his teeth in the hospital in the MVP Colony and late came to his house and called his Advocate and prepared the complaint, went to III Town 7CRL.A.NO.17/2011/MSJ/VSP police station and presented the report. Through this P.W.1, his report is marked as Ex.P.1 and this P.W.1 had identified the property which is allegedly recovered from the accused and they are marked as M.Os.1 to 3.

10.The trustworthiness of the above evidnece of P.W.1 can be gazed only through the facts which will be emerged in his cross examination on behalf of the accused at the same time whether the counsel for the accused has succeeded in shaking the above evidence of P.W.1 in his cross examination. P.W.1 has conceded that he has no previous acquaintance with the accused and after two or three days police asked him as to whether the accused is the said person, he identified the accused as the said person (said person means the assailent of

P.W.1 in the instant case). His son and advocate accompanied him to police station and his son is APP. He admits that he stated before the police that he lost one tooth on upper jaw. He went to the Dental Doctor at about 8.00 p.m., from Hospital and he returned to his house and went to police station at about 9.00 p.m.

11.According to the recitals of Ex.P.1 this complaint was lodged at midnight.

In this regard the evidence of P.W.9 A. Narasmha Murthy Investigating officer must also be considered where he says that on 27.3.2008 midnight at about 12.00 he received report from P.W.1 at the scene of offence and on that he registered the case as Cr.No.229/08 under sec.394 of IPC and issued Ex.P.7

FIR. In the cross examination this P.W.9 admits that he collected the complaint from the house of P.W.1 and when he visited the house of complainant on 8CRL.A.NO.17/2011/MSJ/VSP receipt of informaton by phone. He visited the house of complainant exactly at midnight by that time the complaint was prepared and by the time he visited the house, P.W.1 went to doctor and returned.

12.The learned counsel for the accused has tried to project the above discrepancies in the evidence of P.W.1 and P.W.9 regarding the time, place and receipt of complaint and the place of injuries sustained by P.W.1 as material discrepancies to disbelieve the evidence of prosecution that too when their evidence suffers for want of corroboration from the other witnesses. The above contention of the learned counsel for the accused will be appreciated at appropriate stage after dealing with the evidence of remaining witnesses.

13.As per the evidence of P.W.2 Chaitanya Manikjanta Sai, he is doing pourohithyam under his father and he knows P.W.1. The offence took place about two years ago at about 3.30 p.m., by that time he closed the Ammavari temple and he was coming and he found one car and P.W.1 was in the car with bleeding injury. Then he asked P.W.1 about the injuries but he was unable to talk. Then he went to the house of P.W.1 and informed the same. In the cross examination P.W.2 has reiterated that P.W.1 did not inform him how he received injury as he was unable to talk. By seeing the trend of above cross examiantion of P.W.2, the accused has admittedly not disputing the fact that P.W.2 has noticed P.w.1 with injury at the scene of offence. Even P.W.3 K. Suryanarayana who is car driver stated that he knows P.W.1 who is residing opposite to the house of his car owner and at about one year ago while he was coming to attend 9CRL.A.NO.17/2011/MSJ/VSP the duty, there he found P.W.1 with injuries along with his car. Immediately, he went to the house of P.W.1 and informed the same to his wife. Son of P.w.1 came there and took him to the hospital. In the cross examination P.W.3 says that he saw P.W.1 with injuries at 4.00 p.m., on that day and he does not know what happened subsequently after he informed the incident to the wife of P.W.1 by visiting their house.

14.In order to support the injuries received by P.w.1 in pusuance of the above incident, prosecution has placed medical evidence by relying on the wound certificate and also the evidence of Dr.G. Deepthi. P.W.6 G. Deepthi has clearly stated that on 27.3.2008 she examined P.W.1 with history of trauma being attacked by his driver with blow on his maxilla at 6.30 p.m. , and with the following injuries:

Swelling left upper lip soft tissue injury, bruises upper lip bleeding profuse 21 fracture crown and root piece retained labial mucose 21, 22, 23, 24, 25 region brukes and bleeding. Two sutures given in the laibil. Ex.P.4 is the certificate issued by her. In the cross examination, P.W.6 Dr. G. Deepthi conceded that she did not inform to police and she did not notice any loss of tooth.

15.Merely because there is failure on the part of P.W.6 to inform the police being it is a medico legal case, that should not be the basis to throw away her above evidence when it is otherwise fully corroborated by P.Ws.2 and 3 who are independent witnesses and noticed P.W.1 with injuries. According to 10CRL.A.NO.17/2011/MSJ/VSP prosecution, P.W.9 has conducted the panchanama of the scene of offence in the presence of P.W.4 Y. Satyamurthy and P.W.8 G.V.L.N. Murthy. These witnesses have not supported the prosecution in the above lines by simply stating that they did not know the contents of mediators report. They never visited the scene of offence at any time. However, they admitted their signatures on mediators report as Ex.P.2 and P.6 respectively. Nothing could be elicited by the prosecution from these witnesses in the cross examination having been permitted by the Court.

16.It is also the case of the prosecution that the accused apprehended on 30.3. 2008 in the presence of P.w.5 N. Namassivaya and P.W.7 A.

Sanyasirao . P.W.9 has recovered M.Os. 1 to 3 stolen property of P.W.1 but

P.W.5 stated in his evidence that he never saw the accused, the contents of the report are not known to him but he admits his signature on Ex.P.3 report. Even

P.W.7 stated that he never saw the accused and does not know the contents of mediators report but it bears his signature which s marked as Ex.P.5. These two witnesses are treated as hostile at the instance of prosecution but no case is made out by the prosecution form them in their cross examiantion.

17.As already stated earlier, it is proved by the prosecution that P.W.1 has received injury on the date of incident. Undoubtedly one can notice the discrepancy as to the time of the occurrence of the incident and as already stated earlier, in respect of time and place of lodging of Ex.P.1 complaint and the discrepancy as to the place of the injuries sustained by P.W.1 but the fact 11CRL.A.NO.17/2011/MSJ/VSP remains that this P.W.1 is noticed at the scene of offence with injuries but on account of the gap between the date of occurrence and date of giving evidence, it is quite but natural to emerge these discrepancies but these discrepancies though appears to be material but it will not cut the very root of the case of the prosecution that the accused as driver of P.w.1 taken the latter to MVP colony while returning from the home on the way this incident took place. P.w.1 has identified M.Os.1 to 3 that they are belonged to him. Even though mediators to the recovery of M.Os.1 to 3 have not supported the prosecution but P.W.9 clearly stated that he recovered these material objects from accused which are belonged to P.W.1.

18.The main contention of the counsel for the accused is that as no test identification parade was held though P.W.1 has no previous acquaintance with accused, the identification of the accused by P.W.1 is nothing but first time

in the Court, as such the trail court ought not to have convicted the accused.

19.When the accused approached P.W.1 consecutively on two days, one day seeking for employment as driver and on the following day twice he reported to duty by visiting the house of P.W.1 and they together travelled for a considerable time. So, identity particulars of the accused are definitely imprinted in the mind of P.W.1. Moreover, he has seen the accused on the date of arrest i.e., three days after the incident for the purpose of identification of M.Os.1 to 3.

As per settled law, more evidenciary value shall be attached in case to the injured witness and any discrepancy emerged in the evidence of such injured 12CRL.A.NO.17/2011/MSJ/VSP witness can safely be ignored. This Court is of the view that the evidence of

P.W.1 is very trustworthy and inspire confidence and free from suspicion and blemish and that too when admittedly he has no previous acquaintance with the accused prior to the occurrence and in the absence of animosity in the mind of

P.W.1 to speak against the accused. In the above circumstances, non conducting of test identification parade is not fatal to the prosecution case. This court is of the view that the above evidence placed by the prosecution undoubtedly may attract the offence under sec.394 of IPC but accused has faced trial on the charge of sec.411 of IPC and further one should not forget that this appeal is preferred by the accused. When the accused failed to explain how he retained this M.Os.1 to 3 knowing pretty well that he is not the owner of the said material objects when the said property belongs to P.W.1. It shows the dishonest intention of accused to retain M.os.1 to 3 on which presumption can be drawn as 'receiver of stolen property'. In this case an attempt was made for settlement of this case by filing compromise papers in this court on 19.1.2013 under sec.320(2) and (8) of Cr.P.C., but since the charged offence being non- compoundable, compromise could not be recorded.

20.In the given circumstances and by considering the bright future ahead of accused, it is a fit case where the judgment of conviction of trial court can be confirmed but with the modification of the sentence of imprisonment to fine of Rs.2,000/-. Hence, point for determination is answered accordingly.

21.

13CRL.A.NO.17/2011/MSJ/VSP

21.In the result, the Court do and hereby confirm the judgment of conviction in C.C.1540/2008 dated 27.1.2011 passed by the IV Addl. Chief

Metropolitan Magistrate, Visakhapatnam, by dismissing this appeal with a modification of sentence by converting it to fine of Rs.2,000/- (Rupees two thousand only), in default of payment of fine to suffer simple imprisonment for one month.

Dictated to Shorthand writer, transcribed by her, corrected and

pronounced by me in open Court, this the 25th day of June, 2013.

METROPOLITAN SESSIONS JUDGE-CUM-

I ADDL. DIST. & SESSIONS JUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Appellant :For respondent:

NIL

MSJ-CUM-I ADSJ / VSP